Exhibit 10.2 


 


 





 


 


 


 


 


 


 


 


 


BACKSTOP
COMMITMENT AGREEMENT 








 


AMONG


 


BONANZA
CREEK ENERGY, INC.


 


AND


 


THE COMMITMENT
PARTIES PARTY HERETO


 


Dated as
of December 23, 2016


 


 


 


 


 


 


 





    	 



    	 



    




TABLE OF
CONTENTS


 




 


Page


 












	Article
    I DEFINITIONS	2
	Section
    1.1   Definitions	2
	Section
    1.2   Construction	14
	Article
    II BACKSTOP COMMITMENT	15
	Section
    2.1   The Rights Offering; Subscription Rights	15
	Section
    2.2   The Backstop Commitment	15
	Section
    2.3   Commitment Party Default	16
	Section
    2.4   Escrow Account Funding	17
	Section
    2.5   Closing	17
	Section
    2.6   Designation and Assignment Rights	18
	Article
    III BACKSTOP COMMITMENT PREMIUM AND EXPENSE REIMBURSEMENT	19
	Section
    3.1   Premium Payable by the Company	19
	Section
    3.2   Payment of Premium	20
	Section
    3.3   Expense Reimbursement	20
	Article
    IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY	21
	Section
    4.1   Organization and Qualification	21
	Section
    4.2   Corporate Power and Authority	22
	Section
    4.3   Execution and Delivery; Enforceability	22
	Section
    4.4   Authorized and Issued Capital Stock	23
	Section
    4.5   Issuance	24
	Section
    4.6   No Conflict	24
	Section
    4.7   Consents and Approvals	24
	Section
    4.8   Arm’s-Length	25



 


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TABLE OF
CONTENTS (cont’d)


 


Page


 










	Section
    4.9   Financial Statements	25
	Section
    4.10   Company SEC Documents and Disclosure Statement	25
	Section
    4.11   Absence of Certain Changes	26
	Section
    4.12   No Violation; Compliance with Laws	26
	Section
    4.13   Legal Proceedings	26
	Section
    4.14   Labor Relations	26
	Section
    4.15   Intellectual Property	26
	Section
    4.16   Title to Real and Personal Property	27
	Section
    4.17   No Undisclosed Relationships	27
	Section
    4.18   Licenses and Permits	28
	Section
    4.19   Environmental	28
	Section
    4.20   Tax Returns	29
	Section
    4.21   Employee Benefit Plans	29
	Section
    4.22   Internal Control Over Financial Reporting	30
	Section
    4.23   Disclosure Controls and Procedures	31
	Section
    4.24   Material Contracts	31
	Section
    4.25   No Unlawful Payments	31
	Section
    4.26   Compliance with Anti-Money Laundering Laws	31
	Section
    4.27   No Broker’s Fees	32
	Section
    4.28   Takeover Statutes	32
	Section
    4.29   Investment Company Act	32
	Section
    4.30   Insurance	32
	Section
    4.31   Alternative Transactions	32
	Section
    4.32   Reserve Engineers	32



 


 


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TABLE OF
CONTENTS (cont’d)


 


Page


 






	Section
    4.33   Reserve Reports	33
	Article
    V REPRESENTATIONS AND WARRANTIES OF THE COMMITMENT PARTIES	33
	Section
    5.1   Incorporation	33
	Section
    5.2   Corporate Power and Authority	33
	Section
    5.3   Execution and Delivery	34
	Section
    5.4   No Conflict	34
	Section
    5.5   Consents and Approvals	34
	Section
    5.6   Offering	34
	Section
    5.7   Purchasing Intent	35
	Section
    5.8   Sophistication; Investigation	35
	Section
    5.9   No Broker’s Fees	35
	Section
    5.10   Note Claims	35
	Section
    5.11   Arm’s-Length	36
	Article
    VI ADDITIONAL COVENANTS	36
	Section
    6.1   Orders Generally	36
	Section
    6.2   Conduct of Business	37
	Section
    6.3   Access to Information; Confidentiality	37
	Section
    6.4   Financial Information	39
	Section
    6.5   Commercially Reasonable Efforts	39
	Section
    6.6   Reorganized Company Corporate Documents	40
	Section
    6.7   Blue Sky	40
	Section
    6.8   DTC Eligibility	40
	Section
    6.9   Use of Proceeds	41
	Section
    6.10   Share Legend	41



 


 


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TABLE OF
CONTENTS (cont’d)


 


Page


 



	Section
    6.11   Antitrust Approval	41
	Section
    6.12   Alternative Transactions	42
	Article
    VII CONDITIONS TO THE OBLIGATIONS OF THE PARTIES	43
	Section
    7.1   Conditions to the Obligations of the Commitment Parties	43
	Section
    7.2   Waiver of Conditions to Obligations of Commitment Parties	45
	Section
    7.3   Conditions to the Obligations of the Debtors	45
	Article
    VIII INDEMNIFICATION AND CONTRIBUTION	46
	Section
    8.1   Indemnification Obligations	46
	Section
    8.2   Indemnification Procedure	47
	Section
    8.3   Settlement of Indemnified Claims	48
	Section
    8.4   Contribution	48
	Section
    8.5   Treatment of Indemnification Payments	49
	Section
    8.6   No Survival	49
	Article
    IX TERMINATION	49
	Section
    9.1   Consensual Termination	49
	Section
    9.2   Automatic Termination	49
	Section
    9.3   Termination by the Company	51
	Section
    9.4   Effect of Termination	52
	Article
    X GENERAL PROVISIONS	53
	Section
    10.1   Notices	53
	Section
    10.2   Assignment; Third Party Beneficiaries	54
	Section
    10.3   Prior Negotiations; Entire Agreement	54
	Section
    10.4   Governing Law; Venue	55
	Section
    10.5   Waiver of Jury Trial	55



 


 


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TABLE OF
CONTENTS (cont’d)


 


Page


 






	Section
    10.6   Counterparts	55
	Section
    10.7   Waivers and Amendments; Rights Cumulative; Consent	56
	Section
    10.8   Headings	56
	Section
    10.9   Specific Performance	56
	Section
    10.10   Damages	56
	Section
    10.11   No Reliance	56
	Section
    10.12   Publicity	57
	Section
    10.13   Settlement Discussions	57
	Section
    10.14   No Recourse	57







 


SCHEDULES


 





	Schedule 1	Backstop Commitment Percentages
	Schedule 2	Note Claims
	Schedule 3	Consents




  


EXHIBITS


 





	Exhibit A	Form of Rights Offering Procedures



 


 


v 








    	 



    	 



    

BACKSTOP
COMMITMENT AGREEMENT


 


THIS
BACKSTOP COMMITMENT AGREEMENT (this “Agreement”), dated as of December 23, 2016, 2016 is made by and
among Bonanza Creek Energy, Inc., a Delaware corporation and the ultimate parent of each of the other Debtors (as the debtor in
possession and a reorganized debtor, as applicable, the “Company”), on behalf of itself and the other
Debtors, on the one hand, and the parties set forth on Schedule 1 hereto (each referred to herein, individually, as
a “Commitment Party” and, collectively, as the “Commitment Parties”), on the
other hand. The Company and each Commitment Party is referred to herein, individually, as a “Party”
and, collectively, as the “Parties”. Capitalized terms that are used but not otherwise defined in this
Agreement shall have the meanings given to them in ‎Section 1.1 hereof or, if not defined therein, shall have the meaning
given to them in the Plan.


 


RECITALS


 


WHEREAS,
the Debtors and the Commitment Parties have entered into a Restructuring Support Agreement, dated as of December 23, 2016 (such
agreement, including all the exhibits thereto, as may be amended, supplemented or otherwise modified from time to time, the “Restructuring
Support Agreement”), which provides for the restructuring of the Debtors’ capital structure and financial
obligations pursuant to a “prepackaged” plan of reorganization attached as Exhibit A thereto to be filed in
jointly administered cases (the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States
Code, 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”), in the United States Bankruptcy Court
for the District of Delaware (the “Bankruptcy Court”) (the date of such filings being referred to herein
as the “Petition Date”).


 


WHEREAS,
prior to commencing the Chapter 11 Cases, the Debtors shall launch a solicitation of votes approving the Plan from its creditors
entitled to vote thereon.


 


WHEREAS,
the Debtors plan to file with the Bankruptcy Court, in accordance with the terms of the Restructuring Support Agreement, a motion
seeking entry of (a) the Approval Order and (b) the Confirmation Order.


 


WHEREAS,
pursuant to the Plan and this Agreement, and in accordance with the Rights Offering Procedures, the Company will conduct a rights
offering for the Rights Offering Shares in the Rights Offering Amount at an aggregate purchase price of $200,000,000 and at the
Per Share Purchase Price.


 


WHEREAS,
subject to the terms and conditions contained in this Agreement, each Commitment Party has agreed to purchase (on a several and
not joint basis) its Backstop Commitment Percentage of the Unsubscribed Shares, if any.


 


NOW,
THEREFORE, in consideration of the mutual promises, agreements, representations, warranties and covenants contained herein, each
of the Parties hereby agrees as follows:


 




    1


     

    

Article
I



DEFINITIONS


 


Section
1.1Definitions. Except as otherwise expressly provided in this Agreement, whenever
used in this Agreement (including any Exhibits and Schedules hereto), the following terms shall have the respective meanings specified
therefor below or in the Plan, as applicable:


 


“53⁄4%
Senior Notes” means those certain 53⁄4% senior notes due 2023 issued in the aggregate principal amount of $300,000,000
pursuant to the 53⁄4% Senior Notes Indenture.


 


“53⁄4%
Senior Notes Indenture” means that certain indenture, dated as of July 18, 2014, by and among Bonanza Creek and
Delaware Trust Company, as trustee (as successor to Wells Fargo Bank, National Association), as the same may be amended, supplemented,
revised or modified from time to time.


 


“63⁄4%
Senior Notes” means those certain 63⁄4% senior notes due 2021 issued in the aggregate principal amount of $500,000,000
pursuant to the 63⁄4% Senior Notes Indenture.


 


“63⁄4%
Senior Notes Indenture” means that certain indenture, dated as of April 9, 2013, by and among Bonanza Creek, each
of the guarantors party thereto, and Delaware Trust Company, as trustee (as successor to Wells Fargo Bank, National Association),
as the same may be amended, supplemented, revised or modified from time to time.


 


“Ad
Hoc Committee” means that certain ad hoc committee of Noteholders (including any Ultimate Purchaser(s) to which
any member thereof or any of its Affiliates has transferred all or a portion of its Backstop Commitment pursuant to Section
2.6(b)) represented by Kirkland & Ellis LLP.


 


“Affiliate”
means, with respect to any Person, any other Person that, directly or indirectly, Controls or is Controlled by or is under common
Control with such Person, and shall include, the meaning set forth in section 101(2) of the Bankruptcy Code. “Affiliated”
has a correlative meaning.


 


“Affiliated
Fund” means any investment fund the primary investment advisor to which is such Commitment Party or an Affiliate
thereof.


 


“Aggregate
New Common Shares” means the total number of shares of New Common Stock of the Reorganized Company outstanding as
of the Closing Date (without giving effect to the New Common Stock issued or issuable under the Rights Offering or in respect
of the Commitment Premium or in respect of the new management incentive plan adopted in accordance with the Restructuring Term
Sheet).


 


“Agreement”
has the meaning set forth in the Preamble.


 


“Alternative
Transaction” means any dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors,
merger, transaction, consolidation,


 




    2


     

    

business
combination, joint venture, partnership sale of assets, financing (debt or equity), refinancing, or restructuring of the Company,
other than the Restructuring Transactions (each, an “Alternative Transaction”); provided that any refinancing
of the Company’s RBL Credit Facility (as defined in the Plan) in connection with the Restructuring shall not constitute
an Alternative Transaction.


 


“Amended
RBL Credit Agreement” means, collectively, (a) the Exit Amended RBL Facility Documents (as defined in the Plan);
(b) any loan, security and other documents and filings, in each case related to the Term Loan (as defined in the Plan); and
(c) any loan, security and other documents and filings, in each case related to the treatment RBL Lenders that reject the Plan
are entitled to under section 1129(b)(2)(A) of the Bankruptcy Code.


 


“Anti-Money
Laundering Laws” has the meaning set forth in ‎Section 4.26.


 


“Antitrust
Authorities” means the United States Federal Trade Commission, the Antitrust Division of the United States Department
of Justice, the attorneys general of the several states of the United States and any other Governmental Entity having jurisdiction
pursuant to the Antitrust Laws, and “Antitrust Authority” means any of them.


 


“Antitrust
Laws” means the Sherman Act, the Clayton Act, the HSR Act, the Federal Trade Commission Act, and any other Law governing
agreements in restraint of trade, monopolization, pre-merger notification, the lessening of competition through merger or acquisition
or anti-competitive conduct, and any foreign investment Laws.


 


“Applicable
Consent” has the meaning set forth in ‎Section 4.7.


 


“Approval
Order” means an Order of the Bankruptcy Court, approving, among other things, (a) the Debtors’ assumption
of this Agreement pursuant to section 365 of the Bankruptcy Code and (b) the Rights Offering Procedures and Related Forms.


 


“Available
Shares” means the Unsubscribed Shares that any Commitment Party fails to purchase as a result of a Commitment Party
Default by such Commitment Party.


 


“Backstop
Commitment” has the meaning set forth in ‎Section 2.2.


 


“Backstop
Commitment Percentage” means, with respect to any Commitment Party, such Commitment Party’s percentage of
the Backstop Commitment as set forth opposite such Commitment Party’s name under the column titled “Backstop Commitment
Percentage” on Schedule 1 (as it may be amended, supplemented or otherwise modified from time to time in
accordance with this Agreement). Any reference to “Backstop Commitment Percentage” in this Agreement means the Backstop
Commitment Percentage in effect at the time of the relevant determination.


 


“Bankruptcy
Code” has the meaning set forth in the Recitals.


 


“Bankruptcy
Court” has the meaning set forth in the Recitals.


 




    3


     

    

“Bankruptcy
Rules” means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section
2075 of title 28 of the United States Code, 28 U.S.C. § 2075, as applicable to the Chapter 11 Cases and the general,
local, and chambers rules of the Bankruptcy Court.


 


“BCA
Approval Obligations” means the obligations of the Company and the other Debtors under this Agreement and the Approval
Order.


 


“Business
Day” means any day, other than a Saturday, Sunday or legal holiday, as defined in Bankruptcy Rule 9006(a).


 


“Buy-In
Equity Plan Value” means $421,000,000.


 


“Bylaws”
means the amended and restated bylaws of the Company as of the Closing Date, as set forth in the Plan Supplement and in form and
substance reasonably satisfactory to the Requisite Commitment Parties and the Company.


 


“Certificate
of Incorporation” means the amended and restated certificate of incorporation of the Company as of the Closing Date,
as set forth in the Plan Supplement and in form and substance reasonably satisfactory to the Requisite Commitment Parties and
the Company.


 


“Chapter
11 Cases” has the meaning set forth in the Recitals.


 


“Claim”
has the meaning set forth in section 101(5) of the Bankruptcy Code.


 


“Closing”
has the meaning set forth in ‎Section 2.5(a).


 


“Closing
Date” has the meaning set forth in ‎Section 2.5(a).


 


“Code”
means the Internal Revenue Code of 1986.


 


“Commitment
Party” has the meaning set forth in the Preamble.


 


“Commitment
Party Default” means the failure by any Commitment Party to (a) deliver and pay the aggregate Per Share Purchase
Price for such Commitment Party’s Backstop Commitment Percentage of any Unsubscribed Shares by the Escrow Account Funding
Date in accordance with ‎Section 2.4(b) or (b) fully exercise all Subscription Rights that are issued to it pursuant
to the Rights Offering and duly purchase all Rights Offering Shares issuable to it pursuant to such exercise, in accordance with
the Rights Offering Procedures and the Plan.


 


“Commitment
Party Replacement” has the meaning set forth in ‎Section 2.3(a).


 


“Commitment
Party Replacement Period” has the meaning set forth in ‎Section 2.3(a).


 


“Commitment
Premium” has the meaning set forth in ‎Section 3.1.


 




    4


     

    

“Commitment
Premium Settlement Percentage” means the percentage determined by multiplying (a) 100% by (b) the quotient determined
by dividing (i) the Commitment Premium by (ii) the Buy-In Equity Plan Value.


 


“Company”
has the meaning set forth in the Preamble.


 


“Company
Disclosure Schedules” means the disclosure schedules delivered by the Company to the Commitment Parties on the date
of this Agreement.


 


“Company
Plan” means any employee pension benefit plan, as such term is defined in Section 3(2) of ERISA, (other than a Multiemployer
Plan), subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 of ERISA, and (i) sponsored
or maintained (at the time of determination or at any time within the six years prior thereto) by the Company or any of its Subsidiaries
or any ERISA Affiliate, or with respect to which any such entity has any liability or obligation or (ii) in respect of which the
Company or any of its Subsidiaries or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA
be deemed to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Company
SEC Documents” means all of the reports, schedules, forms, statements and other documents (including exhibits and
other information incorporated therein) filed with the SEC by the Company.


 


“Confirmation
Date” means the date on which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11
Cases within the meaning of Bankruptcy Rules 5003 and 9021.


 


“Confirmation
Order” means a Final Order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy
Code.


 


“Consenting
Noteholders” means each Noteholder that is party to the Restructuring Support Agreement, solely in its capacity
as such.


 


“Contract”
means any agreement, contract or instrument, including any loan, note, bond, mortgage, indenture, guarantee, deed of trust, license,
franchise, commitment, lease, franchise agreement, letter of intent, memorandum of understanding or other obligation, and any
amendments thereto, whether written or oral, but excluding the Plan.


 


“Debtors”
means, collectively, each of the following, as the debtors in possession and reorganized debtors, as applicable: Bonanza Creek
Energy, Inc.; Bonanza Creek Energy Operating Company, LLC; Bonanza Creek Energy Resources, LLC; Bonanza Creek Energy Upstream,
LLC; Bonanza Creek Energy Midstream, LLC; Holmes Eastern Company, LLC; and Rocky Mountain Infrastructure, LLC.


 


“Defaulting
Commitment Party” means in respect of a Commitment Party Default that is continuing, the applicable defaulting Commitment
Party.


 


“Definitive
Documentation” means the definitive documents and agreements governing the Restructuring Transactions as set forth
in the Restructuring Support Agreement.


 




    5


     

    

“Disclosure
Statement” means the disclosure statement relating to the Plan, including all exhibits, appendices and schedules
thereto, as amended, supplemented or modified from time to time.


 


“Effective
Date” means the date that is the first Business Day after the Confirmation Date on which all conditions precedent
to the occurrence of the Effective Date set forth in Section 12.2 of the Plan have been satisfied or waived in accordance with
Section 12.3 of the Plan.


 


“Environmental
Laws” has the meaning set forth in Section 4.19.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) that, together with the Company or any of its
Subsidiaries, is, or at any relevant time during the past six years was, treated as a single employer under any provision of Section
414 of the Code.


 


“ERISA
Event” means (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Company
Plan; (b) any failure by any Company Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code
or Section 302 of ERISA) applicable to such Company Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of
the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Company
Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Company
Plan or the failure to make any required contribution to a Multiemployer Plan; (d) the incurrence by the Company or any of its
Subsidiaries or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Company Plan,
including the imposition of any Lien in favor of the PBGC or any Company Plan or Multiemployer Plan; (e) a determination that
any Company Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 303 of ERISA or Section
430 of the Code); (f) the receipt by the Company or any of its Subsidiaries or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Company Plan or to appoint a trustee to administer any Company Plan under
Section 4042 of ERISA; (g) the incurrence by the Company or any of its Subsidiaries or any ERISA Affiliate of any liability with
respect to the withdrawal or partial withdrawal from any Company Plan or Multiemployer Plan; (h) the receipt by the Company or
any of its Subsidiaries or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any
of its Subsidiaries or any ERISA Affiliate of any notice, concerning the impending imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA), or
in “endangered” or “critical status” (within the meaning of Section 305 of ERISA or Section 432 of the
Code); (i) the conditions for imposition of a Lien under Section 303(k) of ERISA or Section 430(k) of the Code shall have been
met with respect to any Company Plan; (j) the adoption of an amendment to a Company Plan requiring the provision of security to
such Company Plan pursuant to Section 307 of ERISA; or (k) receipt from the IRS of notice of the failure of any Company Plan (or
any other employee benefit plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of
the Code, or the failure of any trust forming part of any Company Plan to qualify for exemption from taxation under Section 501(a)
of the Code.


 




    6


     

    

“Escrow
Account” has the meaning set forth in Section 2.4(a).


 


“Escrow
Account Funding Date” has the meaning set forth in Section 2.4(b).


 


“Event”
means any event, development, occurrence, circumstance, effect, condition, result, state of facts or change.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Expense
Reimbursement” has the meaning set forth in ‎Section 3.3(a).


 


“Filing
Party” has the meaning set forth in ‎Section 6.11(b).


 


“Final
Order” means, as applicable, an Order of the Bankruptcy Court or other court of competent jurisdiction with respect
to the relevant subject matter that has not been reversed, stayed, modified, or amended, and as to which the time to appeal or
seek certiorari has expired and no appeal or petition for certiorari has been timely taken, or as to which any appeal that has
been taken or any petition for certiorari that has been or may be filed has been resolved by the highest court to which the Order
could be appealed or from which certiorari could be sought or the new trial, reargument, or rehearing shall have been denied,
resulted in no modification of such Order, or has otherwise been dismissed with prejudice.


 


“Financial
Reports” has the meaning set forth in ‎Section 6.4(a).


 


“Financial
Statements” has the meaning set forth in ‎Section 4.9.


 


“Funding
Notice” has the meaning set forth in the Subscription Agreement.


 


“GAAP”
has the meaning set forth in ‎Section 4.9.


 


“Governmental
Entity” has the meaning set forth in section 101(27) of the Bankruptcy Code.


 


“Hazardous
Materials” means all pollutants, contaminants, wastes, chemicals and hazardous materials, substances and constituents,
including explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls or radon gas, of any nature, in each case subject to regulation or which can give rise to liability
under any Environmental Law.


 


“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.


 


“Indemnified
Claim” has the meaning set forth in ‎Section 8.2.


 


“Indemnified
Person” has the meaning set forth in ‎Section 8.1.


 


“Indemnifying
Party” has the meaning set forth in ‎Section 8.1.


 


“Indentures”
means the 53⁄4% Senior Notes Indenture and the 63⁄4% Senior Notes Indenture.


 




    7


     

    

“Intellectual
Property Rights” has the meaning set forth in ‎Section 4.15.


 


“IRS”
means the United States Internal Revenue Service.


 


“Joint
Filing Party” has the meaning set forth in ‎Section 6.11(c).


 


“Knowledge
of the Company” means the actual knowledge, after reasonable inquiry of their direct reports, of the chief executive
officer, president, senior vice president, finance and planning, the general counsel, and the vice president and chief accounting
officer of the Company. As used herein, “actual knowledge” means information that is personally known by the listed
individual(s).


 


“Law”
means any law (statutory or common), statute, regulation, rule, code or ordinance enacted, adopted, issued or promulgated by any
Governmental Entity.


 


“Legal
Proceedings” has the meaning set forth in ‎Section 4.13.


 


“Legend”
has the meaning set forth in ‎Section 6.10.


 


“Lien”
means any lien, adverse claim, charge, option, right of first refusal, servitude, security interest, mortgage, pledge, deed of
trust, easement, encumbrance, restriction on transfer, conditional sale or other title retention agreement, defect in title, lien
or judicial lien as defined in sections 101(36) and (37) of the Bankruptcy Code or other restrictions of a similar kind.


 


“Losses”
has the meaning set forth in ‎Section 8.1.


 


“Material
Adverse Effect” means any Event, which individually, or together with all other Events, has had or would reasonably
be expected to have a material and adverse effect on (a) the business, assets, liabilities, finances, properties, results
of operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (b) the ability
of the Company and its Subsidiaries, taken as a whole, to perform their obligations under, or to consummate the transactions contemplated
by, the Transaction Agreements, including the Rights Offering, in each case, except to the extent such Event results from, arises
out of, or is attributable to, the following (either alone or in combination): (i) any change after the date hereof in global,
national or regional political conditions (including hostilities, acts of war, sabotage, terrorism or military actions, or any
escalation or material worsening of any such hostilities, acts of war, sabotage, terrorism or military actions existing or underway)
or in the general business, market, financial or economic conditions affecting the industries, regions and markets in which the
Company and its Subsidiaries operate, including any change in the United States or applicable foreign economies or securities,
commodities or financial markets, or force majeure events or “acts of God”; (ii) any changes after the date hereof
in applicable Law or GAAP, or in the interpretation or enforcement thereof; (iii) the execution, announcement or performance
of this Agreement or the other Transaction Agreements or the transactions contemplated hereby or thereby (including any act or
omission of the Company or its Subsidiaries expressly required or prohibited, as applicable, by this Agreement or consented to
or required by the Requisite Commitment Parties in writing); (iv) changes in the market price or trading volume of the claims
or equity or debt securities of the Company or any of its


 




    8


     

    

Subsidiaries
(but not the underlying facts giving rise to such changes unless such facts are otherwise excluded pursuant to the clauses contained
in this definition); (v) the departure of officers or directors of the Company or any of its Subsidiaries (but not the underlying
facts giving rise to such departure unless such facts are otherwise excluded pursuant to the clauses contained in this definition);
(vi) the filing or pendency of the Chapter 11 Cases or actions taken in connection with the Chapter 11 Cases that are
directed by the Bankruptcy Court and made in compliance with the Bankruptcy Code; (vii) declarations of national emergencies or
natural disasters; (viii) the effect of any action taken by Commitment Parties or their Affiliates with respect to the Debtors
(including through such Persons’ participation in the Chapter 11 Cases); (ix) any matters expressly disclosed in the Disclosure
Statement or the Company Disclosure Schedules as delivered on the date hereof; or (x) the occurrence of a Commitment Party Default;
provided, that the exceptions set forth in clauses (i) and (ii) shall not apply to the extent that such Event is disproportionately
adverse to the Company and its Subsidiaries, taken as a whole, as compared to other companies in the industries in which the Company
and its Subsidiaries operate.


 


“Material
Contracts” means (a) all “plans of acquisition, reorganization, arrangement, liquidation or succession”
and “material contracts” (as such terms are defined in Items 601(b)(2) and 601(b)(10) of Regulation S-K
under the Exchange Act) to which the Company or any of its Subsidiaries is a party, (b) any Contracts to which the Company or
any of its Subsidiaries is a party that is likely to reasonably involve consideration of more than $5,000,000, in the aggregate,
over a twelve-month period, and (c) the Contracts described in Section 1.1 of the Company Disclosure Schedules.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Company or any of its Subsidiaries
or any ERISA Affiliate is making or accruing an obligation to make contributions, has within any of the preceding six plan years
made or accrued an obligation to make contributions, or each such plan with respect to which any such entity has any liability
or obligation.


 


“New
Common Stock” means the common stock of the Reorganized Company.


 


“Note
Claims” means all claims against the Debtors arising on account of the Indentures and the Notes.


 


“Noteholders”
means all holders of the Notes.


 


“Notes”
means the 53⁄4% Senior Notes and the 63⁄4% Senior Notes, in each case issued pursuant to the applicable Indenture.


 


“Order”
means any judgment, order, award, injunction, writ, permit, license or decree of any Governmental Entity or arbitrator of applicable
jurisdiction.


 


“Outside
Date” has the meaning set forth in ‎Section 9.2(a).


 


“Party”
has the meaning set forth in the Preamble.


 


“PBGC”
means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.


 




    9


     

    

“Per
Share Purchase Price” means (a) the Buy-In Equity Plan Value divided by (b) the sum of (i) the Aggregate New Common
Shares, (ii) the shares of New Common Stock issued in satisfaction of the Commitment Premium and (iii) the Rights Offering Shares.


 


“Permitted
Liens” means (a) Liens for Taxes that (i) are not yet delinquent or (ii) are being contested in good faith by appropriate
proceedings and for which adequate reserves have been made with respect thereto; (b) landlord’s, operator’s, vendors’,
carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other similar Liens for labor,
materials or supplies or other like Liens arising by operation of law in the ordinary course of business provided with respect
to any Real Property or personal property incurred in the ordinary course of business consistent with past practice and as otherwise
not prohibited under this Agreement, for amounts that (i) in the case of Liens arising prior to the date hereof, are not more
than sixty (60) days delinquent, (ii) in the case of Liens arising after the date hereof, which are not delinquent and (in the
case of both clauses (i) and (ii)) that do not materially detract from the value of, or materially impair the use of, any of the
Real Property or personal property of any of the Debtors, or, (iii) if for amounts that do materially detract from the value of,
or materially impair the use of, any of the Real Property or personal property of any of the Debtors, if such Lien is being contested
in good faith by appropriate proceedings and for which adequate reserves have been made with respect thereto; (c) zoning, building
codes and other land use Laws regulating the use or occupancy of any Real Property or the activities conducted thereon that are
imposed by any Governmental Entity having jurisdiction over such Real Property; provided, that no such zoning, building codes
and other land use Laws prohibit the use or occupancy of such Real Property; (d) easements, covenants, conditions, minor encroachments,
restrictions on transfer and other similar matters affecting title to any Real Property (including any title retention agreement)
and other title defects and encumbrances that do not or would not materially impair the ownership, use or occupancy of such Real
Property or the operation of the Debtors’ business; (e) Liens granted under any Contracts (including joint operating agreements,
oil and gas leases, farmout agreements, joint development agreements, transportation agreements, marketing agreements, seismic
licenses and other similar operational oil and gas agreements), in each case, to the extent the same are ordinary and customary
in the oil and gas business and do not or would not materially impair the ownership, use or occupancy of any Real Property or
the operation of the Debtors’ business and which are for claims (i) in the case of such Liens arising prior to the date
hereof, not more than sixty (60) days delinquent, (ii) in the case of such Liens arising after the date hereof, not delinquent,
or (iii) if such claim does materially impair such ownership, use, occupancy or operation, are being contested in good faith by
appropriate proceedings and for which adequate reserves have been made with respect thereto; (f) from and after the occurrence
of the Effective Date, Liens granted in connection with the Amended RBL Credit Agreement; (g) mortgages on a lessor’s interest
in a lease or sublease; provided that no foreclosure proceedings have been duly filed (unless, in such case, such mortgage has
been subordinated to the applicable lease); and (h) Liens that, pursuant to the Plan and the Confirmation Order, will be discharged
and released on the Effective Date.


 


“Person”
means an individual, firm, corporation (including any non-profit corporation), partnership, limited liability company, joint venture,
associate, trust, Governmental Entity or other entity or organization.


 




    10


     

    

“Petition
Date” means the date on which each of the Debtors filed their petitions for relief commencing the Chapter 11 Cases.


 


“Plan”
means the Debtors’ joint pre-packaged plan of reorganization to be filed in connection with the Chapter 11 Cases in the
form attached as Exhibit A to the Restructuring Support Agreement and to be approved by the Confirmation Order, including the
Plan Supplement and all exhibits, supplements, appendices and schedules thereto, in form and substance reasonably satisfactory
to each of the Requisite Commitment Parties and the Company, as may be amended, supplemented, or modified from time to time in
accordance with its terms and with the Restructuring Support Agreement and in a manner that is reasonably acceptable to the Requisite
Commitment Parties and the Company.


 


“Plan
Supplement” has the meaning set forth in the Plan.


 


“Pre-Closing
Period” has the meaning set forth in ‎Section 6.2.


 


“RBL
Agent” means KeyBank National Association, or any successor thereto, as administrative agent under the RBL Credit
Agreement, solely in its capacity as such.


 


“RBL
Credit Agreement” means that certain Credit Agreement, dated as of March 29, 2011, as amended, restated, modified,
supplemented, or replaced from time to time prior to the Petition Date, by and among Bonanza Creek Energy, Inc., as borrower,
KeyBank National Association, as Administrative Agent, and the RBL Lenders.


 


“RBL
Lenders” means the lenders party to the RBL Credit Agreement, solely in their capacity as such.


 


“Real
Property” means, collectively, all right, title and interest (including any leasehold estate) in and to any and
all parcels of or interests in real property owned in fee or leased by the Company or any of its Subsidiaries, together with,
in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures incidental
to the ownership or lease thereof.


 


“Related
Party” means, with respect to any Person, (i) any former, current or future director, officer, agent, Affiliate,
employee, general or limited partner, member, manager or stockholder of such Person and (ii) any former, current or future
director, officer, agent, Affiliate, employee, general or limited partner, member, manager or stockholder of any of the foregoing.


 


“Related
Purchaser” has the meaning set forth in ‎Section 2.6(a).


 


“Reorganized
Company” means the Company, or any successors thereto, by merger, consolidation, or otherwise, on and after the
Effective Date.


 


“Reorganized
Company Corporate Documents” means, collectively, the Bylaws and the Certificate of Incorporation.


 


“Replacing
Commitment Parties” has the meaning set forth in ‎Section 2.3(a).


 




    11


     

    

“Reportable
Event” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other
than those events as to which the 30 day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to
a Company Plan.


 


“Representatives”
means, with respect to any Person, such Person’s directors, officers, members, partners, managers, employees, agents, investment
bankers, attorneys, accountants, advisors and other representatives.


 


“Requisite
Commitment Parties” means members of the Ad Hoc Committee holding at least 50 percent of the Backstop Commitment
that is held by the Commitment Parties that are members of the Ad Hoc Committee as of the date on which the consent or approval
of such members is solicited; provided, that for the purposes of this definition, each Commitment Party shall be deemed
to hold the Backstop Commitment held by such Commitment Party’s Related Purchasers.


 


“Required
Supporting Noteholders” has the meaning set forth in the Restructuring Support Agreement.


 


“Restructuring
Support Agreement” has the meaning set forth in the Recitals.


 


“Restructuring
Support Parties” means, collectively, the Consenting Noteholders that are party to the Restructuring Support Agreement.


 


“Restructuring
Transactions” has the meaning set forth in the Plan.


 


“Rights
Offering” means the rights offering that is backstopped by the Commitment Parties in connection with the Restructuring
Transactions substantially on the terms reflected in the Restructuring Support Agreement and this Agreement, and in accordance
with the Rights Offering Procedures.


 


“Rights
Offering Amount” means an amount equal to $200,000,000.


 


“Rights
Offering Expiration Time” means the time and the date on which the rights offering subscription forms must be duly
delivered to the Rights Offering Subscription Agent in accordance with the Rights Offering Procedures, together with the applicable
aggregate Per Share Purchase Price.


 


“Rights
Offering Participants” means those Persons who duly subscribe for Rights Offering Shares in accordance with the
Rights Offering Procedures.


 


“Rights
Offering Procedures” means the procedures with respect to the Rights Offering that are approved by the Bankruptcy
Court pursuant to the Approval Order, which procedures shall be in form and substance substantially as set forth on Exhibit
A hereto, may be modified in a manner that is reasonably acceptable to the Requisite Commitment Parties and the Company.


 




    12


     

    

“Rights
Offering Shares” means the shares of New Common Stock (including all Unsubscribed Shares purchased by the Commitment
Parties pursuant to this Agreement) distributed pursuant to and in accordance with the Rights Offering Procedures.


 


“Rights
Offering Subscription Agent” means Prime Clerk, LLC or another subscription agent appointed by the Company and satisfactory
to the Requisite Commitment Parties.


 


“RSA
Effective Date” has the meaning ascribed to the term “Agreement Effective Date” as defined in the Restructuring
Support Agreement.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Subscription
Agreement” means that certain Subscription Agreement, by and between the Company and the Subscriber (as defined
therein).


 


“Subscription
Rights” means the subscription rights to purchase Rights Offering Shares.


 


“Subsidiary”
means, with respect to any Person, any corporation, partnership, joint venture or other legal entity as to which such Person (either
alone or through or together with any other subsidiary), (a) owns, directly or indirectly, more than fifty percent (50%) of
the stock or other equity interests, (b) has the power to elect a majority of the board of directors or similar governing
body, or (c) has the power to direct the business and policies.


 


“Takeover
Statute” means any restrictions contained in any “fair price,” “moratorium,” “control
share acquisition”, “business combination” or other similar anti-takeover statute or regulation.


 


“Taxes”
means all taxes, assessments, duties, levies or other mandatory governmental charges paid to a Governmental Entity, including
all federal, state, local, foreign and other income, franchise, profits, gross receipts, capital gains, capital stock, transfer,
property, sales, use, value-added, occupation, excise, severance, windfall profits, stamp, payroll, social security, withholding
and other taxes, assessments, duties, levies or other mandatory governmental charges of any kind whatsoever paid to a Governmental
Entity (whether payable directly or by withholding and whether or not requiring the filing of a return), all estimated taxes,
deficiency assessments, additions to tax, penalties and interest thereon and shall include any liability for such amounts as a
result of being a member of a combined, consolidated, unitary or affiliated group. For the avoidance of doubt, such term shall
exclude any tax, penalties or interest thereon that result or have resulted from the non-payment of royalties.


 


“Termination
Date” has the meaning set forth in the Restructuring Support Agreement.


 


“Termination
Fee” means $8,000,000, which represents 4% of the Rights Offering Amount.


 




    13


     

    

“Transaction
Agreements” has the meaning set forth in ‎Section 4.2(a).


 


“Transfer”
means to sell, transfer, assign, pledge, hypothecate, participate, donate or otherwise encumber or dispose of, directly or indirectly
(including through derivatives, options, swaps, pledges, forward sales or other transactions in which any Person receives the
right to own or acquire any current or future interest in a Subscription Right, a Note Claim, a Rights Offering Share or a share
of New Common Stock). “Transfer” used as a noun has a correlative meaning.


 


“Ultimate
Purchaser” has the meaning set forth in ‎Section 2.6(b).


 


“Unfunded
Pension Liability” means the excess of a Company Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Company Plan’s assets, determined in accordance with the assumptions used for funding the
Company Plan pursuant to Section 412 of the Code for the applicable plan year.


 


“Unlegended
Shares” has the meaning set forth in ‎Section 6.8.


 


“Unsubscribed
Shares” means the Rights Offering Shares that have not been duly purchased by the Rights Offering Participants
in accordance with the Rights Offering Procedures and the Plan.


 


“willful
or intentional breach” has the meaning set forth in ‎Section 9.4(a).


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Section 4203 of ERISA.


 


Section
1.2Construction. In this Agreement, unless the context otherwise requires:


 


(a)       references
to Articles, Sections, Exhibits and Schedules are references to the articles and sections or subsections of, and the exhibits
and schedules attached to, this Agreement;


 


(b)       references
in this Agreement to “writing” or comparable expressions include a reference to a written document transmitted by
means of electronic mail in portable document format (pdf), facsimile transmission or comparable means of communication;


 


(c)       words
expressed in the singular number shall include the plural and vice versa; words expressed in the masculine shall include the feminine
and neuter gender and vice versa;


 


(d)       the
words “hereof”, “herein”, “hereto” and “hereunder”, and words of similar import,
when used in this Agreement, shall refer to this Agreement as a whole, including all Exhibits and Schedules attached to this Agreement,
and not to any provision of this Agreement;


 




    14


     

    

(e)       the
term “this Agreement” shall be construed as a reference to this Agreement as the same may have been, or may from time
to time be, amended, modified, varied, novated or supplemented;


 


(f)       “include”,
“includes” and “including” are deemed to be followed by “without limitation” whether or not
they are in fact followed by such words;


 


(g)       references
to “day” or “days” are to calendar days;


 


(h)       references
to “the date hereof” means the date of this Agreement;


 


(i)       unless
otherwise specified, references to a statute means such statute as amended from time to time and includes any successor legislation
thereto and any rules or regulations promulgated thereunder in effect from time to time; and


 


(j)       references
to “dollars” or “$” refer to currency of the United States of America, unless otherwise expressly provided.


 


Article
II



BACKSTOP COMMITMENT


 


Section
2.1The Rights Offering; Subscription Rights. On and subject to the terms and conditions
hereof, including entry of the Approval Order, the Company shall conduct the Rights Offering pursuant to and in accordance with
the Restructuring Support Agreement, the Rights Offering Procedures and the Plan. If reasonably requested by the Requisite Commitment
Parties from time to time prior to the Rights Offering Expiration Time (and any extensions thereto), the Company shall notify,
or cause the Rights Offering Subscription Agent to notify, the Commitment Parties of the aggregate number of Subscription Rights
known by the Company or the Rights Offering Subscription Agent to have been exercised pursuant to the Rights Offering as of the
most recent practicable time before such request.


 


Section
2.2The Backstop Commitment. On and subject to the terms and conditions hereof,
including entry of the Approval Order, each Commitment Party agrees, severally and not jointly, to fully exercise all Subscription
Rights that are issued to it pursuant to the Rights Offering and duly purchase all Rights Offering Shares issuable to it pursuant
to such exercise, in accordance with the Rights Offering Procedures and the Plan; provided that any Commitment Party that
fails to comply with such obligations shall be liable to each non-Defaulting Commitment Party as a result of such failure to comply.
On and subject to the terms and conditions hereof, including entry of the Confirmation Order, each Commitment Party agrees, severally
and not jointly, to purchase, and the Company agrees to sell to such Commitment Party, on the Closing Date for the applicable
aggregate Per Share Purchase Price, the number of Unsubscribed Shares equal to (a) such Commitment Party’s Backstop Commitment
Percentage multiplied by (b) the aggregate number of Unsubscribed Shares, rounded among the Commitment Parties solely to avoid
fractional shares as the Commitment Parties may determine in their sole discretion (provided that in no event shall such rounding
reduce the aggregate commitment of such Commitment Parties). The obligations of the


 




    15


     

    

Commitment
Parties to purchase the Unsubscribed Shares as described in this ‎Section 2.2 shall be referred to as the “Backstop
Commitment”.


 


Section
2.3Commitment Party Default.


 


(a)       Upon
the occurrence of a Commitment Party Default, the Commitment Parties that are, or are Affiliated with, members of the Ad Hoc Committee
(other than any Defaulting Commitment Party) shall have the right, but not the obligation, within five (5) Business Days
after receipt of written notice from the Company to all Commitment Parties of such Commitment Party Default, which notice shall
be given promptly following the occurrence of such Commitment Party Default and to all Commitment Parties substantially concurrently
(such five (5) Business Day period, the “Commitment Party Replacement Period”), to make arrangements
for one or more of the Commitment Parties that is, or is Affiliated with, a member of the Ad Hoc Committee (other than the Defaulting
Commitment Party) to purchase all or any portion of the Available Shares (such purchase, a “Commitment Party Replacement”)
on the terms and subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by all of the
Commitment Parties electing to purchase all or any portion of the Available Shares, or, if no such agreement is reached, based
upon the relative applicable Backstop Commitment Percentages of any such Commitment Parties that are, or are Affiliated with,
members of the Ad Hoc Committee (other than the Defaulting Commitment Party) (such Commitment Parties, the “Replacing
Commitment Parties”). Any such Available Shares purchased by a Replacing Commitment Party (and the commitment and
applicable aggregate Per Share Purchase Price associated therewith) shall be included, among other things, in the determination
of (x) the Unsubscribed Shares of such Replacing Commitment Party for all purposes hereunder, (y) the Backstop Commitment
Percentage of such Replacing Commitment Party for purposes of ‎Section 2.3(c) and ‎Section
3.1 and (z) the Backstop Commitment of such Replacing Commitment Party for purposes of the definition of “Requisite
Commitment Parties”. If a Commitment Party Default occurs, the Outside Date shall be delayed only to the extent necessary
to allow for the Commitment Party Replacement to be completed within the Commitment Party Replacement Period.


 


(b)       If
a Commitment Party is a Defaulting Commitment Party, it shall not be entitled to any of the Commitment Premium or Termination
Fee hereunder.


 


(c)       Nothing
in this Agreement shall be deemed to require a Commitment Party to purchase more than its Backstop Commitment Percentage of the
Unsubscribed Shares.


 


(d)       For
the avoidance of doubt, notwithstanding anything to the contrary set forth in ‎Section 9.4 but subject
to ‎Section 10.10, no provision of this Agreement shall relieve any Defaulting Commitment Party from
liability hereunder, or limit the availability of the remedies set forth in ‎Section 10.9, in connection
with any such Defaulting Commitment Party’s Commitment Party Default.


 


Section
2.4Escrow Account Funding.


 


(a)       Funding
Notice. No later than the fifth (5th) Business Day following the Rights Offering Expiration Time, the Rights Offering
Subscription Agent shall deliver to each


 




    16


     

    

Commitment
Party the Funding Notice setting forth (i) the number of Rights Offering Shares elected to be purchased by the Rights Offering
Participants and the aggregate Per Share Purchase Price therefor; (ii) the aggregate number of Unsubscribed Shares, if any,
and the aggregate Per Share Purchase Price therefor; (iii) the aggregate number of Unsubscribed Shares (based upon such Commitment
Party’s Backstop Commitment Percentage) to be issued and sold by the Company to such Commitment Party and the aggregate
Per Share Purchase Price therefor; and (iv) subject to the last sentence of ‎Section 2.4‎(b),
the escrow account designated in an escrow agreement mutually satisfactory to each of the Parties, acting reasonably, to which
such Commitment Party shall deliver and pay the aggregate Per Share Purchase Price for such Commitment Party’s Backstop
Commitment Percentage of the Unsubscribed Shares (the “Escrow Account”). The Company shall promptly
direct the Rights Offering Subscription Agent to provide any written backup, information and documentation relating to the information
contained in the applicable Funding Notice as any Commitment Party may reasonably request.


 


(b)       Escrow
Account Funding. At the Effective Date or such earlier date agreed with the Requisite Commitment Parties pursuant to escrow
agreements mutually satisfactory to each of the Parties, acting reasonably (the “Escrow Account Funding Date”),
each Commitment Party shall deliver and pay the aggregate Per Share Purchase Price for such Commitment Party’s Backstop
Commitment Percentage of the Unsubscribed Shares by wire transfer in immediately available funds in U.S. dollars into the
Escrow Account in satisfaction of such Commitment Party’s Backstop Commitment. Notwithstanding the foregoing, if the Parties
are unable to agree to escrow agreements that are mutually acceptable to each of them, then all payments contemplated to be made
by the Noteholders to the Escrow Account pursuant to this ‎Section 2.4 shall instead be made to a segregated
Company bank account designated by the Company in the Funding Notice and shall be delivered and paid to such account on or prior
to the Closing Date.


 


Section
2.5Closing.


 


(a)       Subject
to ‎Article VII, unless otherwise mutually agreed in writing between the Company and the Requisite Commitment
Parties, the closing of the Backstop Commitment (the “Closing”) shall take place at the offices of Kirkland
& Ellis LLP (“Kirkland”), 601 Lexington Avenue, New York, New York 10022, at 10:00 a.m.,
New York City time, on the date on which all of the conditions set forth in ‎Article VII shall have been
satisfied or waived in accordance with this Agreement (other than conditions that by their terms are to be satisfied at the Closing,
but subject to the satisfaction or waiver of such conditions). The date on which the Closing actually occurs shall be referred
to herein as the “Closing Date”.


 


(b)       At
the Closing, the funds held in the Escrow Account (and any amounts paid to a Company bank account pursuant to the last sentence
of ‎Section 2.4(b)) shall, as applicable, be released and utilized in accordance with the Plan.


 


(c)       At
the Closing, issuance of the Unsubscribed Shares will be made by the Company to each Commitment Party (or to its designee in accordance
with ‎Section 2.6(a)) against payment of the aggregate Per Share Purchase Price for the Unsubscribed
Shares of such Commitment Party, in satisfaction of such Commitment Party’s Backstop Commitment. Unless a Commitment Party
requests delivery of a physical stock certificate, the entry of any


 




    17


     

    

Unsubscribed
Shares to be delivered pursuant to this ‎Section 2.5(c) into the account of a Commitment Party pursuant
to the Company’s book entry procedures and delivery to such Commitment Party of an account statement reflecting the book
entry of such Unsubscribed Shares shall be deemed delivery of such Unsubscribed Shares for purposes of this Agreement. Notwithstanding
anything to the contrary in this Agreement, all Unsubscribed Shares will be delivered with all issue, stamp, transfer, sales and
use, or similar transfer Taxes or duties that are due and payable (if any) in connection with such delivery duly paid by the Company.


 


Section
2.6Designation and Assignment Rights.


 


(a)       Each
Commitment Party shall have the right to designate by written notice to the Company no later than two (2) Business Days prior
to the Closing Date that some or all of the Unsubscribed Shares that it is obligated to purchase hereunder be issued in the name
of, and delivered to, one or more of its Affiliates or Affiliated Funds (other than any portfolio company of such Commitment Party
or its Affiliates) (each, a “Related Purchaser”) upon receipt by the Company of payment therefor in
accordance with the terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such Commitment
Party and each such Related Purchaser, (ii) specify the number of Unsubscribed Shares to be delivered to or issued in the
name of such Related Purchaser and (iii) contain a confirmation by each such Related Purchaser of the accuracy of the representations
set forth in Sections 5.6 through ‎5.9 as applied to such Related Purchaser; provided,
that no such designation pursuant to this ‎Section 2.6(a) shall relieve such Commitment Party from its
obligations under this Agreement.


 


(b)       Except
as set forth in ‎Section 2.6‎(c), each Commitment Party shall have the right to Transfer all
or any portion of its Backstop Commitment only to (i) any investment fund the primary investment advisor to which is such
Commitment Party or an Affiliate thereof (an “Affiliated Fund”) or (ii) one or more special purpose
vehicles that are wholly owned by one or more of such Commitment Party and its Affiliated Funds, created for the purpose of holding
such Backstop Commitment or holding debt or equity of the Debtors, and with respect to which such Commitment Party either (A)
has provided an adequate equity support letter or a guarantee of such special purpose vehicle’s Backstop Commitment or (B)
otherwise remains obligated to fund the Backstop Commitment to be Transferred until the consummation of the Plan; provided,
that such special purpose vehicle shall not be related to or Affiliated with any portfolio company of such Commitment Party or
any of its Affiliates or Affiliated Funds (other than solely by virtue of its affiliation with such Commitment Party) and the
equity of such special purpose vehicle shall not be directly or indirectly transferable other than to such Persons described in
clause (i) or (ii) of this ‎Section 2.6(b), and in such manner, as such Commitment Party’s Backstop
Commitment is transferable pursuant to this ‎Section 2.6(b) (each of the Persons referred to in clauses
(i) and (ii), an “Ultimate Purchaser”), and that, in each case, provides a written agreement to the
Company under which it (x) confirms the accuracy of the representations set forth in ‎Article V as applied
to such Ultimate Purchaser, (y) agrees to purchase such portion of such Commitment Party’s Backstop Commitment, and
(z) agrees to be fully bound by, and subject to, this Agreement as a Commitment Party hereto; provided, that no sale
or Transfer pursuant to this ‎Section 2.6(b) shall relieve such Commitment Party from its obligations
under this Agreement. Other than as set forth in this ‎Section 2.6(b), no Commitment Party shall be permitted
to Transfer its Backstop Commitment without the prior written consent


 




    18


     

    

of
the Company and the Requisite Commitment Parties, which shall not be unreasonably withheld, conditioned or delayed.


 


(c)       Additionally,
each Commitment Party shall have the right to Transfer all or any portion of its Backstop Commitment to a Consenting Noteholder
or any other entity to whom such Commitment Party transfers its Note Claims in accordance with the Restructuring Support Agreement,
in each case, in full compliance with all transfer restrictions set forth in the Restructuring Support Agreement, including those
contained in Section 4.04 thereof, provided, further, that in accordance with the Restructuring Support Agreement,
such transferee agrees in writing to be bound by the obligations of such Commitment Party under this Agreement and is determined,
after due inquiry and investigation by the Commitment Parties and the Debtors, to be reasonably capable of fulfilling such obligations.
Upon compliance with this Section 2.6(c), the transferring Commitment Party shall be deemed to relinquish its rights (and
be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer) under
this Agreement to the extent of such transferred rights and obligations. Any Transfer made in violation of this ‎Section
2.6‎(c) shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided
to the Parties or any Commitment Party, and shall not create any obligation or liability of any Debtor or any other Commitment
Party to the purported transferee.


 


(d)       Each
Commitment Party, severally and not jointly, agrees that it will not Transfer, at any time prior to the Closing Date or the earlier
termination of this Agreement in accordance with its terms, any of its rights and obligations under this Agreement to any Person
other than in accordance with Sections ‎2.3, ‎2.6(a), ‎2.6(b)
or 2.6‎(c). After the Closing Date, nothing in this Agreement shall limit or restrict in any way the ability
of any Commitment Party (or any permitted transferee thereof) to Transfer any of the shares of New Common Stock or any interest
therein; provided, that any such Transfer shall be made pursuant to an effective registration statement under the Securities
Act or an exemption from the registration requirements thereunder and pursuant to applicable securities Laws.


 


Article
III



BACKSTOP COMMITMENT PREMIUM AND EXPENSE REIMBURSEMENT


 


Section
3.1Premium Payable by the Company. Subject to ‎Section 3.2, in consideration
for the Backstop Commitment and the other agreements of the Commitment Parties in this Agreement, the Debtors shall pay or cause
to be paid a nonrefundable aggregate premium in an amount equal to $12,000,000, which represents 6% of the Rights Offering Amount,
payable in accordance with ‎Section 3.2, to the Commitment Parties (including any Replacing Commitment Party, but excluding
any Defaulting Commitment Party) or their designees based upon their respective Backstop Commitment Percentages at the time the
payment is made (the “Commitment Premium”).


 


The
provisions for the payment of the Commitment Premium, the Termination Fee and Expense Reimbursement, and the indemnification provided
herein, are an integral part of the transactions contemplated by this Agreement. Without these provisions, the Commitment


 




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Parties
would not have entered into this Agreement and incurred the administrative expense and expended the resources and capital to do
so.


 


Section
3.2Payment of Premium. The Commitment Premium shall be fully earned, nonrefundable
and non-avoidable as an administrative expense of the Debtors upon entry of the Approval Order and shall be paid by the Debtors,
free and clear of any withholding or deduction for any applicable Taxes, on the Closing Date as set forth above. For the avoidance
of doubt, to the extent payable in accordance with the terms of this Agreement, the Commitment Premium will be payable regardless
of the amount of Unsubscribed Shares (if any) actually purchased. The Company shall satisfy its obligation to pay the Commitment
Premium on the Closing Date by, in lieu of any cash payments, issuing the number of additional shares of New Common Stock (rounding
down to the nearest whole share solely to avoid fractional shares) to the Commitment Parties that is required to be issued so
that, after giving effect to the New Common Stock issued or issuable under the Rights Offering and in respect of the satisfaction
of the Commitment Premium by way of issuance of such additional shares of New Common Stock pursuant to this ‎Section 3.2,
the Commitment Parties are issued, in satisfaction of the Company’s obligation to pay the Commitment Premium, the Commitment
Premium Settlement Percentage of the total number of shares of New Common Stock of the Reorganized Company outstanding as of the
Closing Date (excluding from such total number of shares of New Common Stock any shares of New Common Stock issued or issuable
in respect of the Management Incentive Plan and, for the avoidance of doubt, including in such total number of shares of New Common
Stock (i) the Rights Offering Shares, (ii) any Unsubscribed Shares issued pursuant to this Agreement and (iii) the shares of New
Common Stock issued in satisfaction of such Commitment Premium); provided, that if the Closing does not occur, the Termination
Fee shall be payable (in lieu of the Commitment Premium, and any and all claims in respect of which shall be deemed waived, released
and of no further force and effect), in cash, to the extent provided in Section 9.4. The Parties hereto agree and acknowledge
that the Commitment Premium is to reimburse the administrative expenses incurred by the Commitment Parties in preparing this Agreement
and allocating capital to fund their commitments herein. To the extent the Company’s obligation to pay the Commitment Premium
to the Commitment Parties as provided herein is satisfied by the issuance of additional shares of New Common Stock, such issuance
of shares will be subject to (i) applicable provisions of the Securities Act, the Bankruptcy Code or other applicable securities
laws insofar as such laws relate to the definition of “underwriters” and (ii) compliance with the rules and regulations
of the SEC.


 


Section
3.3Expense Reimbursement.


 


(a)       The
Debtors agree to pay, in accordance with ‎Section 3.3(b) below, (A) the reasonable and documented fees
and expenses (including travel costs and expenses) of Kirkland as primary counsel, one local counsel and Evercore Group L.L.C.,
as financial advisor, and any such other advisors or consultants as may be reasonably determined by the Consenting Noteholders
and the Commitment Parties, with the prior written consent of the Company, such consent not to be unreasonably withheld, and (B)
subject to the entry of the Approval Order, all filing fees, if any, required by the HSR Act or any other Antitrust Law in connection
with the transactions contemplated by this Agreement and all reasonable and documented expenses related thereto (such payment
obligations set forth in clauses (A) and (B) above, the “Expense Reimbursement”). The Expense Reimbursement
shall, pursuant to the Approval Order,


 




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constitute
allowed administrative expenses of the Debtors’ estate under sections 503(b) and 507 of the Bankruptcy Code.


 


(b)       The
Expense Reimbursement described in Section 3.3(a)(A) shall be paid in accordance with Section 9 of the Restructuring Support
Agreement. The Expense Reimbursement described in Section 3.3(a)(B) accrued through the date on which the Approval Order
is entered shall be paid in accordance with the Approval Order upon its entry by the Bankruptcy Court, and in no event later than
two Business Days after the date of the entry of the Approval Order. The Expense Reimbursement described in Section 3.3(a)(B)
shall thereafter be payable by the Debtors upon receipt of an invoice in accordance with the Approval Order; provided,
that the Debtors’ final payment shall be made contemporaneously with the Closing or the termination of this Agreement pursuant
to ‎Article IX. The Commitment Parties shall promptly provide summary copies of all invoices (redacted
as necessary to protect privileges) to the Debtors and to the United States Trustee.


 


Article
IV



REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


Except
(i) as set forth in the corresponding section of the Company Disclosure Schedules or (ii) as disclosed in the Company
SEC Documents filed with the SEC on or after December 31, 2015 and publicly available on the SEC’s Electronic Data-Gathering,
Analysis and Retrieval (“EDGAR”) system prior to the date hereof (excluding the exhibits, annexes and
schedules thereto, any disclosures contained in the “Forward-Looking Statements” or “Risk Factors” sections
thereof, or any other statements that are similarly predictive, cautionary or forward looking in nature), the Debtors, jointly
and severally, hereby represent and warrant to the Commitment Parties (unless otherwise set forth herein, as of the date of this
Agreement and as of the Closing Date) as set forth below.


 


Section
4.1Organization and Qualification.


 


(a)       The
Company and each of its Subsidiaries (a) is a duly organized and validly existing corporation or limited liability company,
as the case may be, and, if applicable, in good standing (or the equivalent thereof) under the Laws of the jurisdiction of its
incorporation or organization (except, in the case of the Company’s Subsidiaries,
where the failure to be in good standing (or the equivalent) would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect), (b) has the corporate or other applicable power and authority to own its property
and assets and to conduct the business in which it is currently engaged and presently proposes to engage and (c) is duly
qualified and is authorized to transact business and is in good standing in each jurisdiction where the conduct of its business
or its ownership or leasing of property requires such qualifications, except in the cases
of clauses (b) and (c) where to the extent that the failure to be so qualified or be in good standing would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(b)       All
of the issued ownership interests of each Subsidiary have been duly and validly authorized and issued in accordance with the limited
liability agreement applicable to


 




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each
such Subsidiary, are fully paid (to the extent required by such limited liability company agreements), are non-assessable (except
as such non-assessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability
Company Act), are owned directly or indirectly by the Company and are free and clear of all liens, encumbrances, equities or claims,
except for liens, encumbrances, equities or claims granted under the RBL Credit Agreement or the Amended RBL Credit Agreement,
as applicable.


 


Section
4.2Corporate Power and Authority.


 


(a)       The
Company has the requisite corporate power and authority (i) (A) subject to entry of the Approval Order and the Confirmation
Order, to enter into, execute and deliver this Agreement and to perform the BCA Approval Obligations and (B) subject to entry
of the Approval Order and the Confirmation Order, to perform each of its other obligations hereunder and (ii) subject to
entry of the Confirmation Order, to consummate the transactions contemplated herein and in the Plan, to enter into, execute and
deliver all other agreements to which it will be a party as contemplated by this Agreement and the Plan (this Agreement, the Plan,
the Disclosure Statement, the Restructuring Support Agreement, the Amended RBL Credit Agreement, and such other agreements and
any Plan supplements or documents referred to herein or therein or hereunder or thereunder, collectively, the “Transaction Agreements”)
and to perform its obligations under each of the Transaction Agreements (other than this Agreement). Subject to the receipt of
the foregoing Orders, as applicable, the execution and delivery of this Agreement and each of the other Transaction Agreements
and the consummation of the transactions contemplated hereby and thereby have been or will be duly authorized by all requisite
corporate action on behalf of the Company, and no other corporate proceedings on the part of the Company are or will be necessary
to authorize this Agreement or any of the other Transaction Agreements or to consummate the transactions contemplated hereby or
thereby.


 


(b)       Subject
to entry of the Approval Order and the Confirmation Order, each of the other Debtors has the requisite power and authority (corporate
or otherwise) to enter into, execute and deliver each Transaction Agreement to which such other Debtor is a party and to perform
its obligations thereunder. Subject to entry of the Approval Order and the Confirmation Order, the execution and delivery of this
Agreement and each of the other Transaction Agreements and the consummation of the transactions contemplated hereby and thereby
have been or will be duly authorized by all requisite action (corporate or otherwise) on behalf of each other Debtor party thereto,
and no other proceedings on the part of any other Debtor party thereto are or will be necessary to authorize this Agreement or
any of the other Transaction Agreements or to consummate the transactions contemplated hereby or thereby.


 


Section
4.3Execution and Delivery; Enforceability. Subject to entry of the Approval Order,
this Agreement will have been, and subject to the entry of the Approval Order and the Confirmation Order, each other Transaction
Agreement will be, duly executed and delivered by the Company and each of the other Debtors party thereto. Upon entry of the Approval
Order and assuming due and valid execution and delivery hereof by the Commitment Parties, the BCA Approval Obligations will constitute
the valid and legally binding obligations of the Company and, to the extent applicable, the other Debtors, enforceable against
the Company and, to the extent applicable, the other Debtors in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar Laws


 




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now
or hereafter in effect relating to creditor’s rights generally and subject to general principles of equity. Upon entry of
the Approval Order and assuming due and valid execution and delivery of this Agreement and the other Transaction Agreements by
the Commitment Parties and, to the extent applicable, any other parties hereof and thereof, each of the obligations of the Company
and, to the extent applicable, the other Debtors hereunder and thereunder will constitute the valid and legally binding obligations
of the Company and, to the extent applicable, the other Debtors, enforceable against the Company and, to the extent applicable,
the other Debtors, in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other similar Laws now or hereafter in effect relating to creditor’s rights generally and subject to general principles
of equity.


 


Section
4.4Authorized and Issued Capital Stock.


 


(a)       On
the Closing Date, (i) the total issued capital stock of the Company will consist of the Aggregate New Common Shares plus the shares
of New Common Stock issued under the Rights Offering plus the shares of New Common Stock issued in respect of the Commitment Premium
pursuant to Article III, (ii) no shares of New Common Stock will be held by the Company in its treasury, (iii) no shares of New
Common Stock will be reserved for issuance upon exercise of stock options and other rights to purchase or acquire shares of New
Common Stock granted in connection with any employment arrangement entered into in accordance with Section 6.3, except
as reserved in respect of the new management incentive plan adopted in accordance with the Restructuring Term Sheet, and (iv)
no warrants to purchase shares of New Common Stock will be issued and outstanding, except as reserved in respect of the Warrants
to be issued in accordance with the Plan.


 


(b)       As
of the Closing Date, all issued and outstanding shares of New Common Stock will have been duly authorized and validly issued and
will be fully paid and non-assessable, and will not be subject to any preemptive rights.


 


(c)       Except
as set forth in this ‎Section 4.4, as of the Closing Date, no shares of capital stock or other equity
securities or voting interest in the Company will have been issued, reserved for issuance or outstanding.


 


(d)       Except
as described in this ‎Section 4.4 and except as set forth in the Reorganized Company Corporate Documents
and this Agreement, as of the Closing Date, neither the Company nor any of its Subsidiaries will be party to or otherwise bound
by or subject to any outstanding option, warrant, call, right, security, commitment, Contract, arrangement or undertaking (including
any preemptive right) that (i) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or repurchase,
redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or repurchased, redeemed or otherwise acquired,
any shares of the capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or any security
convertible or exercisable for or exchangeable into any capital stock of, or other equity or voting interest in, the Company or
any of its Subsidiaries, (ii) obligates the Company or any of its Subsidiaries to issue, grant, extend or enter into any
such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking, (iii) restricts the Transfer
of any shares of capital stock of the Company or any of its Subsidiaries (other than any


 




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restrictions
included in the Amended RBL Credit Agreement or any corresponding pledge agreement) or (iv) relates to the voting of any
shares of capital stock of the Company.


 


Section
4.5Issuance. The shares of New Common Stock to be issued pursuant to the Plan,
including the shares of New Common Stock to be issued in connection with the consummation of the Rights Offering and pursuant
to the terms hereof, will, when issued and delivered on the Closing Date in exchange for the aggregate Per Share Purchase Price
therefor, be duly and validly authorized, issued and delivered and shall be fully paid and non-assessable, and free and clear
of all Taxes, Liens (other than Transfer restrictions imposed hereunder or under the Reorganized Company Corporate Documents or
by applicable Law), preemptive rights, subscription and similar rights (other than any rights set forth in the Reorganized Company
Corporate Documents). Assuming the truth and accuracy of the representations of each Commitment Party set forth in this Agreement
and on its Beneficial Holder Subscription Form (as defined in the Rights Offering Procedures), the issuance of the New Common
Stock in the manner contemplated by the Rights Offering and Article III hereto shall be exempt from registration pursuant to Section
4(a)(2) under the Securities Act and/or Regulation D promulgated thereunder or Section 1145 of the Bankruptcy Code.


 


Section
4.6No Conflict. Assuming the consents described in clauses (a) through (e)
of ‎Section 4.7 are obtained, the execution and delivery by the Company and, if applicable, its Subsidiaries of this
Agreement, the Plan and the other Transaction Agreements, the compliance by the Company and, if applicable, its Subsidiaries with
the provisions hereof and thereof and the consummation of the transactions contemplated herein and therein will not (a) conflict
with, or result in a breach, modification or violation of, any of the terms or provisions of, or constitute a default under (with
or without notice or lapse of time, or both), or result, except to the extent specified in the Plan, in the acceleration of, or
the creation of any Lien under, or cause any payment or consent to be required under any Contract to which the Company or any
of its Subsidiaries (including any Subsidiaries that are not Debtors) will be bound as of the Closing Date after giving effect
to the Plan or to which any of the property or assets of the Company or any of its Subsidiaries (including any Subsidiaries that
are not Debtors) will be subject as of the Closing Date after giving effect to the Plan, (b) result in any violation of the
provisions of the Reorganized Company Corporate Documents or any of the organization documents of any of the Company’s Subsidiaries
(other than, for the avoidance of doubt, a breach or default that would be triggered as a result of the Chapter 11 Cases or the
Company’s or any Debtor’s undertaking to implement the Restructuring Transactions through the Chapter 11 Cases), or
(c) result in any violation of any Law or Order applicable to the Company or any of its Subsidiaries (including any Subsidiaries
that are not Debtors) or any of their properties, except in each of the cases described in clause (a) or (c) for any conflict,
breach, modification, violation, default, acceleration or Lien which would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


Section
4.7Consents and Approvals. No consent, approval, authorization, Order, registration
or qualification of or with any Governmental Entity having jurisdiction over the Company or any of its Subsidiaries or any of
their properties (each, an “Applicable Consent”) is required for the execution and delivery by the Company
and, to the extent relevant, its Subsidiaries of this Agreement, the Plan and the other Transaction Agreements, the compliance
by the Company and, to the extent relevant, its Subsidiaries with the


 




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provisions
hereof and thereof and the consummation of the transactions contemplated herein and therein, except for (a) the entry of
the Approval Order authorizing the Company to assume this Agreement and perform the BCA Approval Obligations, (b) the entry by
the Bankruptcy Court, or any other court of competent jurisdiction, of orders as may be necessary in the Chapter 11 Cases from
time-to-time, (c) the entry of the Confirmation Order, (d) filings, notifications, authorizations, approvals, consents, clearances
or termination or expiration of all applicable waiting periods under any Antitrust Laws in connection with the transactions contemplated
by this Agreement, (e) such consents, approvals, authorizations, registrations or qualifications as may be required under
state securities or “Blue Sky” Laws in connection with the purchase of the Unsubscribed Shares by the Commitment Parties,
the issuance of the Subscription Rights, the issuance of the Rights Offering Shares pursuant to the exercise of the Subscription
Rights, the issuance of New Common Stock as payment of the Commitment Premium, and (f) any Applicable Consents that, if not
made or obtained, would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole.


 


Section
4.8Arm’s-Length. The Company acknowledges and agrees that (a) each
of the Commitment Parties is acting solely in the capacity of an arm’s-length contractual counterparty to the Company with
respect to the transactions contemplated hereby (including in connection with determining the terms of the Rights Offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company or any of its Subsidiaries and (b) no Commitment
Party is advising the Company or any of its Subsidiaries as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction.


 


Section
4.9Financial Statements. The audited consolidated balance sheets of the Company
as at December 31, 2015 and the related consolidated statements of operations and of cash flows for the fiscal year then
ended, accompanied by a report thereon by Hein & Associates LLP (collectively, the “Financial Statements”),
present fairly, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries
as of the dates shown and their results of operations and cash flows for the periods shown. All such Financial Statements, including
the related schedules and notes thereto, have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”)
on a consistent basis.


 


Section
4.10Company SEC Documents and Disclosure Statement. Since December 31, 2014, the
Company has filed all required reports, schedules, forms and statements with the SEC. As of their respective dates, and giving
effect to any amendments or supplements thereto filed prior to the date of this Agreement, each of the Company SEC Documents that
have been filed as of the date of this Agreement complied in all material respects with the requirements of the Securities Act
or the Exchange Act applicable to such Company SEC Documents. The Company has filed with the SEC all Material Contracts that are
required to be filed as exhibits to the Company SEC Documents that have been filed as of the date of this Agreement. No Company
SEC Document that has been filed prior to the date of this Agreement, after giving effect to any amendments or supplements thereto
and to any subsequently filed Company SEC Documents, in each case filed prior to the date of this Agreement, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading. The Disclosure Statement as approved by the
Bankruptcy Court will conform in all material respects with section 1125 of the Bankruptcy Code.


 




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Section
4.11Absence of Certain Changes. Since December 31, 2015 to the date of this Agreement,
no event, development, occurrence or change has occurred or exists that constitutes, individually
or in the aggregate, a Material Adverse Effect.


 


Section
4.12No Violation; Compliance with Laws. (i) The Company is not in violation
of its charter or bylaws, and (ii) no Subsidiary of the Company is in violation of its respective certificate or articles
of formation, limited liability company or operating agreement or similar organizational document in any material respect. Neither
the Company nor any of its Subsidiaries is or has been at any time since January 1, 2013 in violation of any Law or Order, except
for any such violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


Section
4.13Legal Proceedings. Other than as listed in Section 4.13 of the Company
Disclosure Schedules and other than the Chapter 11 Cases and any adversary proceedings or contested motions commenced in
connection therewith, there are no material legal, governmental, administrative, judicial or regulatory investigations, audits,
actions, suits, claims, arbitrations, demands, demand letters, claims, notices of noncompliance or violations, or proceedings
(“Legal Proceedings”) pending or, to the Knowledge of the Company, threatened to which the Company or
any of its Subsidiaries is a party or to which any property of the Company or any of its Subsidiaries is the subject, in each
case that in any manner draws into question the validity or enforceability of this Agreement, the Plan or the other Transaction
Agreements or that would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.


 


Section
4.14Labor Relations. Except as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (a) there are no strikes or other labor disputes pending or threatened against
the Company or any of its Subsidiaries; (b) the hours worked and payments made to employees of the Company or any of its Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other applicable Law dealing with such matters; and (c) all
payments due from the Company or any of its Subsidiaries or for which any claim may be made against the Company or any of its
Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability
on the books of the Company or such Subsidiaries to the extent required by GAAP. Except as would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, the consummation of the transactions contemplated by the Transaction
Agreements will not give rise to a right of termination or right of renegotiation on the part of any union under any material
collective bargaining agreement to which the Company or any of its Subsidiaries (or any predecessor) is a party or by which the
Company or any of its Subsidiaries (or any predecessor) is bound.


 


Section
4.15Intellectual Property. The Company and its Subsidiaries own or possess, or
can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights, know how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names currently employed by them in connection with the business now operated by them except where the
failure to so own or possess would not, individually or in the aggregate, have a Material Adverse Effect, and neither the Company
nor any of its Subsidiaries


 




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has
received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to have
a Material Adverse Effect.


 


Section
4.16Title to Real and Personal Property.


 


(a)       Real
Property. Except as disclosed in Section 4.16 to the Company Disclosure Schedules or in the Company SEC Documents,
the Company and its Subsidiaries have (i) good and defensible title to all of the interests in oil and gas properties underlying
the Company’s estimates of its net proved reserves and (ii) good and marketable title to all other real and personal property
as assets owned by them, in each case free and clear of all liens, encumbrances and defects except for (x) Permitted Liens and
other encumbrances under operating agreements, unitization and pooling agreements, production sales contracts, farmout agreements
and other oil and gas exploration participation and production agreements that secure payment of amounts not yet due and payable
for the performance of other unmatured obligations and are of a scope and nature customary in the oil and gas industry or arise
in connection with drilling and production operations, or (y) such as would not reasonably be expected to have a Material Adverse
Effect.


 


(b)       Leased
Real Property. Any other real property and buildings held under lease by the Company and its Subsidiaries are held by them
under valid, subsisting and enforceable leases except such as would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and the working interests derived from oil, gas and mineral leases or mineral interests
that constitute a portion of the real property held or leased by the Company or its Subsidiaries reflect in all material respects
the rights of the Company and its Subsidiaries to explore, develop or produce hydrocarbons from such real property, and the care
taken by the Company and its Subsidiaries with respect to acquiring or otherwise procuring such leases or other property interests
was generally consistent with standard industry practices in the areas in which the Company operates for acquiring or procuring
leases and interests therein to explore, develop or produce hydrocarbons. With respect to interests in oil and gas leases obtained
by or on behalf of the Company or its Subsidiaries that have not yet been drilled or included in a unit for drilling, the Company
or its Subsidiaries have carried out such title investigations in accordance with the practices customary in the oil and gas industry
in the areas in which the leased properties are located.


 


(c)       Personal
Property. Each of the Company and its Subsidiaries owns or possesses the right to use all Intellectual Property Rights and
all licenses and rights with respect to any of the foregoing used in the conduct of their businesses, without any conflict (of
which the Company or any of its Subsidiaries has been notified in writing) with the rights of others, and free from any burdensome
restrictions on the present conduct of the Company and its Subsidiaries, as the case may be, except where such conflicts and restrictions
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


Section
4.17No Undisclosed Relationships. Other than Contracts or other direct or indirect
relationships between or among the Company and its Subsidiaries or between the Subsidiaries of the Company and each other, there
are no Contracts or other direct or indirect relationships existing as of the date hereof between or among the Company or any
of


 




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its
Subsidiaries, on the one hand, and any director, officer or greater than five percent (5%) stockholder of the Company or any of
its Subsidiaries, on the other hand, that is required by the Exchange Act to be described in the Company’s filings with
the SEC and that is not so described, except for the transactions contemplated by this Agreement. Any Contract existing as of
the date hereof between or among the Company or any of its Subsidiaries, on the one hand, and any director, officer or greater
than five percent (5%) stockholder of the Company or any of its Subsidiaries, on the other hand, that is required by the Exchange
Act to be described in the Company’s filings with the SEC is filed as an exhibit to, or incorporated by reference as indicated
in, the Annual Report on Form 10-K for the year ended December 31, 2015 that the Company filed on February 29, 2016 or another
Company SEC Document filed between February 29, 2016 and the date hereof.


 


Section
4.18Licenses and Permits. (a) The Company and its Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary
or material to conduct its business, except where the failure to possess such licenses, certificates, permits or authorizations
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (b) neither the Company
nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could
reasonably be expected to have a Material Adverse Effect; and (c) the Company and its Subsidiaries has no reason to believe that
any such license, certificate, permit and other authorization will not be renewed in the ordinary course, except to the extent
that any of the foregoing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
except, in each case, as disclosed in Section 4.18 of the Company Disclosure Schedules; and the Company does not reasonably
expect any future inability to acquire such permits as are necessary to conduct its business.


 


Section
4.19Environmental. The Company and its Subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety
(to the extent such health and safety relate to exposure to Hazardous Material or toxic substances or wastes, pollutants or contaminants),
the environment or the release, treatment, storage or disposal of Hazardous Materials or toxic substances or wastes, pollutants
or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses as they are currently being conducted
and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a Material Adverse Effect. Except
as described in Section 4.19 of the Company Disclosure Schedules, none of the Company or its Subsidiaries anticipates any
capital expenditures for fiscal years 2016 and 2017 required by Environmental Laws which would, singly or in the aggregate, have
a Material Adverse Effect. To the Knowledge of the Company, neither the Company nor its Subsidiaries have generated, treated,
stored, released or disposed of any Hazardous Materials that would give rise to any costs or liabilities under any Environmental
Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance
with


 




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Environmental
Laws or any permit, license or approval, and any potential liabilities to third parties) which would, singly or in the aggregate,
have a Material Adverse Effect.


 


Section
4.20Tax Returns.


 


(a)       Except
as would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole, (i) each of the Company
and its Subsidiaries has filed or caused to be filed all U.S. federal, state, provincial, local and non-U.S. Tax returns required
to have been filed by it and (ii) taken as a whole, each such Tax return is true and correct;


 


(b)       Each
of the Company and its Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due and payable by it on
the returns referred to in clause (a) and all other Taxes or assessments (or made adequate provision (in accordance with GAAP)
for the payment of all Taxes due) with respect to all periods or portions thereof ending on or before the date hereof (except
Taxes or assessments that are being contested in good faith by appropriate proceedings and for which the Company and its Subsidiaries
(as the case may be) has set aside on its books adequate reserves in accordance with GAAP or with respect to the Debtors only,
except to the extent the non-payment thereof is permitted by the Bankruptcy Code), which Taxes, if not paid or adequately provided
for, would reasonably be expected to be material to the Company and its Subsidiaries taken as a whole; and


 


(c)       As
of the date hereof, with respect to the Company and its Subsidiaries, other than in connection with the Chapter 11 Cases and other
than Taxes or assessments that are being contested in good faith and are not expected to result in significant negative adjustments
that would be material to the Company and its Subsidiaries taken as a whole, (i) there are no claims being asserted in writing
with respect to any Taxes, (ii) no presently effective waivers or extensions of statutes of limitation with respect to Taxes have
been given or requested and (iii) no Tax returns are being examined by, and no written notification of intention to examine has
been received from, the IRS or any other Governmental Entity.


 


Section
4.21Employee Benefit Plans.


 


(a)       Except
for the filing and pendency of the Chapter 11 Cases or otherwise as would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect: (i) each Company Plan and each Multiemployer Plan is in compliance
with the applicable provisions of ERISA and the Code; (ii) no Reportable Event has occurred during the past six years (or is reasonably
likely to occur); (iii) no Company Plan has any Unfunded Pension Liability in excess of $2,000,000 with respect to any single
Company Plan and in excess of $3,000,000 with respect to all Company Plans in the aggregate; (iv) no ERISA Event has occurred
or is reasonably expected to occur; (v) none of the Company or any of its Subsidiaries has engaged in a “prohibited transaction”
(as defined in Section 406 of ERISA and Section 4975 of the Code) in connection with any employee pension benefit plan (as defined
in Section 3(2) of ERISA) that would subject the Company or any of its Subsidiaries to Tax; (vi) no employee welfare plan (as
defined in Section 3(1) of ERISA) maintained or contributed to by the Company or any of its Subsidiaries provides benefits to
retired employees or other former employees (other than as required by Section 601 of ERISA); and (vii) none of the Company or
any of its


 




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Subsidiaries
or any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability.


 


(b)       Neither
the Company nor any of its Subsidiaries has established, sponsored or maintained, or has any liability with respect to, any employee
pension benefit plan or other employee benefit plan, program, policy, agreement or arrangement governed by or subject to the Laws
of a jurisdiction other than the United States of America.


 


(c)       Except
as would not be reasonably expected to result, individually or in the aggregate, in a Material Adverse Effect, there are no pending,
or to the Knowledge of the Company, threatened claims, sanctions, actions or lawsuits, asserted or instituted against any Company
Plan or any Person as fiduciary or sponsor of any Company Plan, in each case other than claims for benefits in the normal course.


 


(d)       Within
the last six years, no Company Plan has been terminated, whether or not in a “standard termination” as that term is
used in Section 4041(b)(1) of ERISA, except as would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect nor has any Company Plan with Unfunded Pension Liabilities been transferred outside of the “controlled group”
(within the meaning of Section 4001(a)(14) of ERISA).


 


(e)       Except
as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, all compensation and
benefit arrangements of the Company and its Subsidiaries comply and have complied in both form and operation with their terms
and all applicable Laws and legal requirements, and neither the Company, nor any of its Subsidiaries, could reasonably be expected
to have any obligation to provide any individual with a “gross up” or similar payment in respect of any Taxes that
may become payable under Section 409A or 4999 of the Code.


 


(f)       Except
as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) the Company and
each of its Subsidiaries has complied and is currently in compliance with all Laws and legal requirements in respect of personnel,
employment and employment practices; (ii) all service providers of the Company or its Subsidiaries are correctly classified as
employees, independent contractors, or otherwise for all purposes (including any applicable tax and employment policies or law);
and (iii) the Company and its Subsidiaries have not and are not engaged in any unfair labor practice.


 


Section
4.22Internal Control Over Financial Reporting. The Company and each of its Subsidiaries,
on a consolidated basis, maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Company SEC Documents or in Section 4.22 of the Company Disclosure
Schedules, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the
Company’s internal control


 




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over
financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.


 


Section
4.23Disclosure Controls and Procedures. The Company and its Subsidiaries have
established, maintained and periodically evaluate the effectiveness of “disclosure controls and procedures” (as defined
in Rules 13a-15 and 15d-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that information
required to be disclosed by the Company in the reports that it will be required to file or submit under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and is accumulated and
communicated to the Company’s management, including its principal executive officer or officers and principal financial
officer or officers, as appropriate, to allow timely decisions regarding disclosure.


 


Section
4.24Material Contracts. All Material Contracts are valid, binding and enforceable
by and against the Company or its relevant Subsidiary and, to the Knowledge of the Company, each other party thereto (except where
the failure to be valid, binding or enforceable does not constitute a Material Adverse Effect), and no written notice to terminate,
in whole or part, any Material Contract has been delivered to the Company or any of its Subsidiaries (except where such termination
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect). Other than as a result
of the filing of the Chapter 11 Cases, neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company,
any other party to any Material Contract, is in material default or breach under the terms thereof, in each case, except for such
instances of material default or breach that would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


Section
4.25No Unlawful Payments. Neither the Company nor any of its Subsidiaries nor,
to the Knowledge of the Company, any director, officer, employee, affiliate, agent or representative of the Company or of any
of its Subsidiaries, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of
the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “foreign official”,
as defined in the Foreign Corrupt Practices Act (the “FCPA”) (including any officer or employee of a
foreign government or government-owned or controlled entity or of a public international organization, or any person acting in
an official capacity for or on behalf of any of the foregoing, or any foreign political party or party official or candidate for
political office) to influence official action or secure an improper advantage in violation of the FCPA; and the Company and its
Subsidiaries and affiliates have conducted their businesses in compliance with the FCPA.


 


Section
4.26Compliance with Anti-Money Laundering Laws. The operations of the Company
and its Subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping
and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable
anti-money laundering statutes of jurisdictions where the Company and its Subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,


 




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administered
or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Knowledge of the Company, threatened.


 


Section
4.27No Broker’s Fees. Neither the Company nor any of its Subsidiaries is
a party to any Contract with any Person (other than this Agreement) that would give rise to a valid claim against the Commitment
Parties for a brokerage commission, finder’s fee or like payment in connection with the Rights Offering or the sale of the
Unsubscribed Shares.


 


Section
4.28Takeover Statutes. No Takeover Statute is applicable to this Agreement, the
Backstop Commitment and the other transactions contemplated by this Agreement. As of the entry of the Approval Order, the board
of directors of the Company shall have authorized and approved the issuance of the New Common Stock, including the Rights Offering
Shares, pursuant to this Agreement, the Plan and the Rights Offering.


 


Section
4.29Investment Company Act. Neither the Company nor any of its Subsidiaries is
an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.


 


Section
4.30Insurance. The Company and each of its Subsidiaries, on a consolidated basis,
are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; neither the Company nor any of its Subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Company nor any of its Subsidiaries has any reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except
as described in the Company SEC Documents or in Section 4.30 of the Company Disclosure Schedules.


 


Section
4.31Alternative Transactions. As of the date hereof, neither the Company nor any
of its Subsidiaries is pursuing, or in discussions regarding, any solicitation, offer, or proposal from any Person concerning
any actual or proposed Alternative Transaction, except with the prior written consent of the Commitment Parties.


 


Section
4.32Reserve Engineers. Cawley, Gillespie & Associates, Inc. (“CG&A”),
a reserve engineer that prepared reserve reports on estimated net proved oil and natural gas reserves held by the Company and
its predecessors as of December 31, 2012, was, as of the date of preparation of such reserve reports, and is, as of the date hereof,
an independent petroleum engineer with respect to the Company and its predecessors. Netherland, Sewell & Associates, Inc.
(“NSAI”), a reserve engineer that prepared reserve reports on estimated net proved oil and natural gas
reserves held by the Company as of December 31, 2013, and audited reserve reports prepared by the Company on estimated net proved
oil and natural gas reserves held by the Company as of December 31, 2014 and December 31, 2015 was, as of the date of


 




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preparation
or audit, as applicable, of such reserve reports, and is, as of the date hereof, an independent petroleum engineer with respect
to the Company. The information provided to CG&A and NSAI by the Company, including, without limitation, information as to
production, costs of operation and development, current prices for production and agreements relating to current and future operations
and sales of production, was true and correct in all material respects on the dates the reports were made. Such information was
provided to CG&A and NSAI in accordance with all customary industry practices.


 


Section
4.33Reserve Reports. The reserve reports prepared by CG&A, NSAI and the Company
setting forth the estimated proved reserves attributed to the oil and gas properties of the Company accurately reflect in all
material respects the ownership interests of the Company, its Subsidiaries and its predecessors in the properties therein. Other
than normal production of reserves, intervening market commodity price fluctuations, fluctuations in demand for such products,
adverse weather conditions, unavailability or increased costs of rigs, equipment, supplies or personnel, the timing of third party
operations and other facts, in each case in the ordinary course of business, and except as disclosed in the Company SEC Documents
or in Section 4.33 of the Company Disclosure Schedules, the Company is not aware of any facts or circumstances that would
result in a material adverse change in the aggregate net reserves, or the present value of future net cash flows therefrom, as
disclosed in the Company SEC Documents or in Section 4.33 of the Company Disclosure Schedules, and reserve reports; and
estimates of such reserves and present values as disclosed in the Company SEC Documents or in Section 4.33 of the Company
Disclosure Schedules, and reflected in the reserve reports comply in all material respects with the applicable requirements of
Regulation S-X and Industry Guide 2 under the Securities Act.


 


Article
V



REPRESENTATIONS AND WARRANTIES OF THE COMMITMENT PARTIES


 


Each
Commitment Party represents and warrants as to itself only (unless otherwise set forth herein, as of the date of this Agreement
and as of the Closing Date) as set forth below.


 


Section
5.1Incorporation. Such Commitment Party is a legal entity duly organized, validly
existing and, if applicable, in good standing (or the equivalent thereof) under the Laws of its jurisdiction of incorporation
or organization (except where the failure to be in good standing (or the equivalent) would
not reasonably be expected to prohibit or materially and adversely impact such Commitment Party’s performance of its obligations
under this Agreement).


 


Section
5.2Corporate Power and Authority. Such Commitment Party has the requisite power
and authority (corporate or otherwise) to enter into, execute and deliver this Agreement and each other Transaction Agreements
to which such Commitment Party is a party and to perform its obligations hereunder and thereunder and has taken all necessary
action (corporate or otherwise) required for the due authorization, execution, delivery and performance by it of this Agreement
and the other Transaction Agreements.


 




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Section
5.3Execution and Delivery. This Agreement and each other Transaction Agreement
to which such Commitment Party is a party (a) has been, or prior to its execution and delivery will be, duly and validly
executed and delivered by such Commitment Party and (b) upon entry of the Approval Order and assuming due and valid execution
and delivery hereof and thereof by the Company and the other Debtors (as applicable), will constitute valid and legally binding
obligations of such Commitment Party, enforceable against such Commitment Party in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar Laws limiting creditors’ rights
generally or by equitable principles relating to enforceability.


 


Section
5.4No Conflict. Assuming that the consents referred to in clauses (a) and
(b) of ‎Section 5.5 are obtained, the execution and delivery by such Commitment Party of this Agreement and each other
Transaction Agreement to which such Commitment Party is a party, the compliance by such Commitment Party with all of the provisions
hereof and thereof and the consummation of the transactions contemplated herein and therein (a) will not conflict with, or
result in breach, modification, termination or violation of, any of the terms or provisions of, or constitute a default under
(with or without notice or lapse of time or both), or result in the acceleration of, or the creation of any Lien under, any Contract
to which such Commitment Party is party or is bound or to which any of the property or assets or such Commitment Party are subject,
(b) will not result in any violation of the provisions of the certificate of incorporation or bylaws (or comparable constituent
documents) of such Commitment Party and (c) will not result in any material violation of any Law or Order applicable to such
Commitment Party or any of its properties, except in each of the cases described in clauses (a) or (c), for any conflict,
breach, modification, violation, default, acceleration or Lien which would not reasonably be expected, individually or in the
aggregate, to prohibit or materially and adversely impact such Commitment Party’s performance of its obligations under this
Agreement.


 


Section
5.5Consents and Approvals. No consent, approval, authorization, Order, registration
or qualification of or with any Governmental Entity having jurisdiction over such Commitment Party or any of its properties is
required for the execution and delivery by such Commitment Party of this Agreement and each other Transaction Agreement to which
such Commitment Party is a party, the compliance by such Commitment Party with the provisions hereof and thereof and the consummation
of the transactions (including the purchase by such Commitment Party of its Backstop Commitment Percentage of the Unsubscribed
Shares and its portion of the Rights Offering Shares) contemplated herein and therein, except (a) any consent, approval,
authorization, Order, registration or qualification which, if not made or obtained, would not reasonably be expected, individually
or in the aggregate, to prohibit or materially and adversely impact such Commitment Party’s performance of its obligations
under this Agreement and each other Transaction Agreement to which such Commitment Party is a party and (b) filings, notifications,
authorizations, approvals, consents, clearances or termination or expiration of all applicable waiting periods under any Antitrust
Laws in connection with the transactions contemplated by this Agreement.


 


Section
5.6Offering. Such Commitment Party represents and warrants that it has not engaged
and will not engage in “general solicitation” or “general advertising” (each within the meaning of Regulation
D of the Securities Act) of or to investors with respect to


 




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offers
or sales of (a) the Unsubscribed Shares or (b) any shares of New Common Stock issued to such Commitment Party in satisfaction
of the Commitment Premium, in each case under circumstances that would cause the offering or issuance of Unsubscribed Shares or
any shares of New Common Stock issued in satisfaction of the Commitment Premium under this Agreement not to be exempt from registration
under the Securities Act pursuant to Section 4(a)(2), the provisions of Regulation D or any other applicable exemption to the
extent that such shares are issued in reliance on Section 4(a)(2) of the Securities Act.


 


Section
5.7Purchasing Intent. Such Commitment Party is acquiring the Unsubscribed Shares,
and any shares of New Common Stock issued to such Commitment Party in satisfaction of the Commitment Premium, for its own account
or accounts or funds over which it holds voting discretion, not otherwise as a nominee or agent, and not otherwise with the view
to, or for resale in connection with, any distribution thereof not in compliance with applicable securities Laws, and such Commitment
Party has no present intention of selling, granting any other participation in, or otherwise distributing the same, except in
compliance with applicable securities Laws.


 


Section
5.8Sophistication; Investigation. Such Commitment Party has such knowledge and
experience in financial and business matters such that it is capable of evaluating the merits and risks of its investment in the
Unsubscribed Shares and any shares of New Common Stock issued to such Commitment Party in satisfaction of the Commitment Premium.
Such Commitment Party is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act and
a “qualified institutional buyer” within the meaning of Rule 144A of the Securities Act. Such Commitment Party
understands and is able to bear any economic risks associated with such investment (including the necessity of holding such shares
for an indefinite period of time). Except for the representations and warranties expressly set forth in this Agreement or any
other Transaction Agreement, such Commitment Party disclaims reliance on any representations or warranties, either express or
implied, by or on behalf of the Company or any of its Subsidiaries. Such
Commitment Party acknowledges that  it (A) has been furnished with or has had full access to all the information that it
considers necessary or appropriate to make an informed investment decision with respect to the Unsubscribed Shares or any shares
of New Common Stock issued to such Commitment Party in satisfaction of the Commitment Premium, (B) has had an opportunity to discuss
with management of the Company the intended business and financial affairs of the Company and to obtain information (to the extent
the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information
furnished to it or to which it had access. Such Commitment Party acknowledges that the transfer of the Unsubscribed Shares or
any shares of New Common Stock issued to such Commitment Party in satisfaction of the Commitment Premium has not been registered
under the Securities Act or under any state securities laws.


 


Section
5.9No Broker’s Fees. Such Commitment Party is not a party to any Contract
with any Person (other than the Transaction Agreements and any Contract giving rise to the Expense Reimbursement hereunder) that
would give rise to a valid claim against the Company or any of its Subsidiaries for a brokerage commission, finder’s fee
or like payment in connection with the Rights Offering or the sale of the Unsubscribed Shares.


 


Section
5.10Note Claims.


 




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(a)       As
of the date hereof, such Commitment Party and its Affiliates (to the extent of such Commitment Party’s knowledge) were,
collectively, the beneficial owner of, or the investment advisor or manager for the beneficial owner of, at least the aggregate
principal amount of Note Claims as set forth opposite such Commitment Party’s name under the column titled “Note Claims”
on Schedule 2 attached hereto.


 


(b)       As
of the date hereof, such Commitment Party or its applicable Affiliates has the full power to vote, dispose of and compromise at
least the aggregate principal amount of the Note Claims set forth opposite such Commitment Party’s name under the column
titled “Note Claims” on Schedule 2 attached hereto.


 


(c)       As
of the date hereof, such Commitment Party has not entered into any Contract to Transfer, in whole or in part, any portion of its
right, title or interest in such Note Claims where such Transfer would prohibit such Commitment Party from complying with the
terms of this Agreement or the Restructuring Support Agreement.


 


Section
5.11Arm’s-Length. Such Commitment Party acknowledges and agrees that (a)
the Company and its Subsidiaries are acting solely in the capacities of arm’s-length contractual counterparties to such
Commitment Party with respect to the transactions contemplated hereby (including in connection with determining the terms of the
Rights Offering) and not as a financial advisor or a fiduciary to, or an agent of, such Commitment Party and (b) neither
the Company nor any of its Subsidiaries is advising such Commitment Party as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction.


 


Article
VI



ADDITIONAL COVENANTS


 


Section
6.1Orders Generally. The Company and the Debtors, as applicable, shall support
and make commercially reasonable efforts, consistent with the Restructuring Support Agreement, to (a) obtain the entry of
the Approval Order and the Confirmation Order, (b) cause the Approval Order and the Confirmation Order to become Final Orders
(and request that such Orders become Final Orders effective immediately upon entry by the Bankruptcy Court pursuant to a waiver
of Rules 3020 and 6004(h) of the Bankruptcy Rules, as applicable), and (c) take all other actions required under the terms of
the Restructuring Support Agreement, consistent with the Bankruptcy Code, the Bankruptcy Rules and the Restructuring Support Agreement.
Unless otherwise determined by the Requisite Commitment Parties, counsel to the Commitment Parties will provide the Company and
its counsel with copies of the proposed Approval Order, and a reasonable opportunity to review and comment on such Orders prior
to such Orders being filed with the Bankruptcy Court, and such Orders shall be in form and substance reasonably satisfactory to
the Requisite Commitment Parties and satisfactory to the Company. Any amendments, modifications, changes, or supplements to any
of the Approval Order and the Confirmation Order and any of the motions seeking entry of such Orders, shall be in form and substance
reasonably satisfactory to the Requisite Commitment Parties and satisfactory to the Company.


 




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Section
6.2Conduct of Business


 


(a)Except as
expressly set forth in this Agreement or in the Restructuring Support Agreement or with the prior written consent of Requisite
Commitment Parties (requests for which, including related information, shall be directed to the counsel and financial advisors
to the Ad Hoc Committee), during the period from the date of this Agreement to the earlier of the Closing Date and the date on
which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”), (a) the
Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course and use its commercially
reasonable efforts to: (i) preserve intact its business, (ii) keep available the services of its officers and employees,
(iii) preserve its material relationships with customers, suppliers, licensors, licensees, distributors and others having
material business dealings with the Company or its Subsidiaries in connection with their business, and (iv) file Company SEC Documents
within the time periods required under the Exchange Act, in each case in accordance with ordinary course practices, and (b) the
Company shall not, and shall not permit any of its Subsidiaries to, enter into any transaction that is material to their business
other than (A) transactions in the ordinary course of business that are consistent with prior business practices of the Debtors,
(B) other transactions after prior notice to the Commitment Parties to implement tax planning which transactions are not
reasonably expected to materially adversely affect any Commitment Party and (C) transactions expressly contemplated by the
Transaction Agreements.


 


For
the avoidance of doubt, the following shall be deemed to occur outside of the ordinary course of business of the Company and shall
require the prior written consent of the Requisite Commitment Parties unless the same would otherwise be permissible under the
preceding clause (B) or (C): (1) any amendment, modification, termination, waiver, supplement, restatement or other change
to any Material Contract or any assumption of any Material Contract in connection with the Chapter 11 Cases (other than as contemplated
and allowed by the Restructuring Support Agreement or any Material Contracts that are otherwise addressed by clause (3) below),
(2) entry into, or any amendment, modification, waiver, supplement or other change to, any employment agreement to which the Company
or any of its Subsidiaries is a party or any assumption of any such employment agreement in connection with the Chapter 11 Cases,
except for as provided for in the Restructuring Support Agreement or the Plan, and (3) the adoption or amendment of any management
incentive or equity plan by any of the Debtors except for as provided for in the Restructuring Support Agreement or the Plan.
Except as otherwise provided in this Agreement, nothing in this Agreement shall give the Commitment Parties, directly or indirectly,
any right to control or direct the operations of the Company and its Subsidiaries. Prior to the Closing Date, the Company and
its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision
of the business of the Company and its Subsidiaries.


 


Section
6.3Access to Information; Confidentiality.


 


(a)       Subject
to applicable Law and ‎Section 6.3(b), upon reasonable notice during the Pre-Closing Period, the Company
shall (and shall cause its Subsidiaries to) afford the Commitment Parties and their Representatives upon request reasonable access,
during normal business hours and without unreasonable disruption or interference with the Company’s and its Subsidiaries’
business or operations, to the Company’s and its Subsidiaries’ employees, properties, books, Contracts and records
and, during the Pre-Closing Period, the Company shall


 




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(and
shall cause its Subsidiaries to) furnish promptly to such parties all reasonable information concerning the Company’s and
its Subsidiaries’ business, properties and personnel as may reasonably be requested by any such party, provided that
the foregoing shall not require the Company (i) to permit any inspection, or to disclose any information, that in the reasonable
judgment of the Company would cause the Company or any of its Subsidiaries to violate any of their respective obligations with
respect to confidentiality to a third party if the Company shall have used its commercially reasonable efforts to obtain, but
failed to obtain, the consent of such third party to such inspection or disclosure, (ii) to disclose any legally privileged
information of the Company or any of its Subsidiaries or (iii) to violate any applicable Laws or Orders. All requests for
information and access made in accordance with this ‎Section 6.3 shall be directed to an executive officer
of the Company or such Person as may be designated by the Company’s executive officers.


 


(b)       From
and after the date hereof until the date that is one (1) year after the expiration of the Pre-Closing Period, each Commitment
Party shall, and shall cause its Representatives to, (i) keep confidential and not provide or disclose to any Person any documents
or information received or otherwise obtained by such Commitment Party or its Representatives pursuant to ‎Section
6.3(a), ‎Section 6.4 or in connection with a request for approval pursuant to ‎Section
6.2 (except that provision or disclosure may be made to any Affiliate or Representative of such Commitment Party who needs
to know such information for purposes of this Agreement or the other Transaction Agreements and who agrees to observe the terms
of this ‎Section 6.3(b) (and such Commitment Party will remain liable for any breach of such terms by
any such Affiliate or Representative)), and (ii) not use such documents or information for any purpose other than in connection
with this Agreement or the other Transaction Agreements or the transactions contemplated hereby or thereby. Notwithstanding the
foregoing, the immediately preceding sentence shall not apply in respect of documents or information that (A) is now or subsequently
becomes generally available to the public through no violation of this ‎Section 6.3(b), (B) becomes available
to a Commitment Party or its Representatives on a non-confidential basis from a source other than the Company or any of its Subsidiaries
or any of their respective Representatives, (C) becomes available to a Commitment Party or its Representatives through document
production or discovery in connection with the Chapter 11 Cases or other judicial or administrative process, but subject to any
confidentiality restrictions imposed by the Chapter 11 Cases or other such process, or (D) such Commitment Party or any Representative
thereof is required to disclose pursuant to judicial or administrative process or pursuant to applicable Law or applicable securities
exchange rules; provided, that, such Commitment Party or such Representative shall provide the Company with prompt written
notice of such legal compulsion and, to the extent permitted by applicable Law, exercise commercially reasonable efforts to cooperate
with the Company to obtain a protective Order or similar remedy to cause such information or documents not to be disclosed, including,
to the extent permitted by applicable Law, interposing all available objections thereto, at the Company’s sole cost and
expense; provided, further, that, in the event that such protective Order or other similar remedy is not obtained,
the disclosing party shall furnish only that portion of such information or documents that is legally required to be disclosed
and shall exercise its commercially reasonable efforts (at the Company’s sole cost and expense) to obtain assurance that
confidential treatment will be accorded such disclosed information or documents to the extent permitted by applicable Law.


 




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Section
6.4Financial Information.


 


(a)       During
the Pre-Closing Period, the Company shall deliver to the counsel and financial advisors to the Ad Hoc Committee, and to each Commitment
Party that so requests, all statements and reports the Company is required to deliver to the RBL Agent pursuant to Section 4.05
of the RBL Credit Agreement (as in effect on the date hereof) (the “Financial Reports”).  Neither
any waiver by the parties to the RBL Credit Agreement of their right to receive the Financial Reports nor any amendment or termination
of the RBL Credit Agreement shall affect the Company’s obligation to deliver the Financial Reports to the Commitment Parties
in accordance with the terms of this Agreement.


 


(b)       Information
required to be delivered pursuant to Section 4.05 of the RBL Credit Agreement (as in effect on the date hereof) shall
be deemed to have been delivered in accordance with ‎Section 6.4(a) on the date on which the Company
provides written notice to the counsel and financial advisors to the Ad Hoc Committee, and to each Commitment Party that so requests,
such information that such information is available via the EDGAR system of the SEC on the internet (to the extent such information
has been posted or is available as described in such notice).


 


(c)       Each
Commitment Party agrees that all information and reports delivered pursuant to this ‎Section 6.4 shall
be subject to the provisions of ‎Section 6.3(b).


 


Section
6.5Commercially Reasonable Efforts.


 


(a)       Without
in any way limiting any other respective obligation of the Company or any Commitment Party in this Agreement, each Party shall
use commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably
necessary, proper or advisable in order to consummate and make effective the transactions contemplated by this Agreement and the
Plan, including using commercially reasonable efforts in:


 


(i)       timely
preparing and filing all documentation reasonably necessary to effect all necessary notices, reports and other filings of such
Person and to obtain as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or
advisable to be obtained from any third party or Governmental Entity;


 


(ii)       defending
any Legal Proceedings in any way challenging (A) this Agreement, the Plan or any other Transaction Agreement, (B) the Approval
Order and the Confirmation Order or (C) the consummation of the transactions contemplated hereby and thereby, including seeking
to have any stay or temporary restraining Order entered by any Governmental Entity vacated or reversed; and


 


(iii)       working
together in good faith to finalize the Reorganized Company Corporate Documents, Transaction Agreements and all other documents
relating thereto for timely inclusion in the Plan and filing with the Bankruptcy Court.


 




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(b)       Subject
to applicable Laws relating to the exchange of information, and in accordance with the Restructuring Support Agreement, the Commitment
Parties and the Company shall have the right to review in advance, and to the extent practicable each will consult with the other
on all of the information relating to Commitment Parties or the Company, as the case may be, and any of their respective Subsidiaries,
that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection
with the transactions contemplated by this Agreement or the Plan; provided, however, that the Commitment Parties
are not required to provide for review in advance declarations or other evidence submitted in connection with any filing with
the Bankruptcy Court. In exercising the foregoing rights, the Parties shall act as reasonably and as promptly as practicable.


 


(c)       [Reserved]


 


(d)       Nothing
contained in this ‎Section 6.5(d) shall limit the ability of any Commitment Party to consult with the
Debtors, to appear and be heard, or to file objections, concerning any matter arising in the Chapter 11 Cases to the extent
not inconsistent with the Restructuring Support Agreement.


 


Section
6.6Reorganized Company Corporate Documents. The Plan will provide that on the
Effective Date the Reorganized Company Corporate Documents will be approved, adopted and effective. Forms of the Reorganized Company
Corporate Documents shall be filed with the Bankruptcy Court as part of the Plan Supplement or an amendment thereto.


 


Section
6.7Blue Sky. The Company shall, on or before the Closing Date, take such action
as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Unsubscribed Shares
issued hereunder, sale to the Commitment Parties at the Closing Date pursuant to this Agreement under applicable securities and
“Blue Sky” Laws of the states of the United States (or to obtain an exemption from such qualification) and any applicable
foreign jurisdictions, and shall provide evidence of any such action so taken to the Commitment Parties on or prior to the Closing
Date. The Company shall timely make all filings and reports relating to the offer and sale of the Unsubscribed Shares issued hereunder
required under applicable securities and “Blue Sky” Laws of the states of the United States following the Closing
Date. The Company shall pay all fees and expenses in connection with satisfying its obligations under this ‎Section 6.7.


 


Section
6.8DTC Eligibility. Unless otherwise requested by the Requisite Commitment Parties,
the Company shall use commercially reasonable efforts to promptly make, when applicable from time to time after the Closing, all
Unlegended Shares eligible for deposit with The Depository Trust Company. “Unlegended Shares” means
any shares of New Common Stock acquired by the Commitment Parties and their respective Affiliates (including any Related Purchaser
or Ultimate Purchaser in respect thereof) pursuant to this Agreement and the Plan, including all shares issued to the Commitment
Parties and their respective Affiliates in connection with the Rights Offering, that do not require, or are no longer subject
to, the Legend.


 




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Section
6.9Use of Proceeds. The Debtors will apply the proceeds from the exercise of the
Subscription Rights and the sale of the Unsubscribed Shares for the purposes identified in the Disclosure Statement and the Plan.


 


Section
6.10Share Legend. In the event the shares of New Common Stock distributed pursuant
to this Agreement are issued in reliance on section 4(a)(2) of the Securities Act, each certificate evidencing all shares of New
Common Stock issued hereunder, including any certificate evidencing shares of New Common Stock that may be issued in satisfaction
of the Commitment Premium and in reliance on section 4(a)(2) of the Securities Act as provided herein, and each certificate issued
in exchange for or upon the Transfer of any such shares, shall be stamped or otherwise imprinted with a legend (the “Legend”)
in substantially the following form:


 


“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [DATE OF ISSUANCE], HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN AVAILABLE EXEMPTION
FROM REGISTRATION THEREUNDER.”


 


In the event
that any such shares are uncertificated, such shares shall be subject to a restrictive notation substantially similar to the Legend
in the stock ledger or other appropriate records maintained by the Company or agent and the term “Legend” shall include
such restrictive notation. The Company shall remove the Legend (or restrictive notation, as applicable) set forth above from the
certificates evidencing any such shares (or the stock ledger or other appropriate Company records, in the case of uncertified
shares), upon request, at any time after the restrictions described in such Legend cease to be applicable, including, as applicable,
when such shares may be sold under Rule 144 of the Securities Act. The Company may reasonably request such opinions, certificates
or other evidence that such restrictions no longer apply as a condition to removing the Legend.


 


Section
6.11Antitrust Approval.


 


(a)       Each
Party agrees to use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done,
all things necessary to consummate and make effective the transactions contemplated by this Agreement, the Plan and the other
Transaction Agreements, including (i) if applicable, filing, or causing to be filed, the Notification and Report Form pursuant
to the HSR Act with respect to the transactions contemplated by this Agreement with the Antitrust Division of the United States
Department of Justice and the United States Federal Trade Commission and any filings (or, if required by any Antitrust Authority,
any drafts thereof) under any other Antitrust Laws that are necessary to consummate and make effective the transactions contemplated
by this Agreement as soon as reasonably practicable and no later than fifteen (15) Business Days following the date hereof and
(ii) promptly furnishing documents or information reasonably requested by any Antitrust Authority.


 




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(b)       The
Company and each Commitment Party subject to an obligation pursuant to the Antitrust Laws to notify any transaction contemplated
by this Agreement, the Plan or the other Transaction Agreements that has notified the Company in writing of such obligation (each
such Commitment Party, a “Filing Party”) agree to reasonably cooperate with each other as to the appropriate
time of filing such notification and its content. The Company and each Filing Party shall, to the extent permitted by applicable
Law: (i) promptly notify each other of, and if in writing, furnish each other with copies of (or, in the case of material
oral communications, advise each other orally of) any communications from or with an Antitrust Authority; (ii) not participate
in any meeting with an Antitrust Authority unless it consults with each other Filing Party and the Company, as applicable, in
advance and, to the extent permitted by the Antitrust Authority and applicable Law, give each other Filing Party and the Company,
as applicable, a reasonable opportunity to attend and participate thereat; (iii) furnish each other Filing Party and the
Company, as applicable, with copies of all correspondence and communications between such Filing Party or the Company and the
Antitrust Authority; (iv) furnish each other Filing Party with such necessary information and reasonable assistance as may
be reasonably necessary in connection with the preparation of necessary filings or submission of information to the Antitrust
Authority; and (v) not withdraw its filing, if any, under the HSR Act without the prior written consent of the Requisite
Commitment Parties and the Company.


 


(c)       Should
a Filing Party be subject to an obligation under the Antitrust Laws to jointly notify with one or more other Filing Parties (each,
a “Joint Filing Party”) any transaction contemplated by this Agreement, the Plan or the other Transaction
Agreements, such Joint Filing Party shall promptly notify each other Joint Filing Party of, and if in writing, furnish each other
Joint Filing Party with copies of (or, in the case of material oral communications, advise each other Joint Filing Party orally
of) any communications from or with an Antitrust Authority.


 


(d)       The
Company and each Filing Party shall use their commercially reasonable efforts to obtain all authorizations, approvals, consents,
or clearances under any applicable Antitrust Laws or to cause the termination or expiration of all applicable waiting periods
under any Antitrust Laws in connection with the transactions contemplated by this Agreement at the earliest possible date after
the date of filing. The communications contemplated by this ‎Section 6.11 may be made by the Company
or a Filing Party on an outside counsel-only basis or subject to other agreed upon confidentiality safeguards. The obligations
in this ‎Section 6.11 shall not apply to filings, correspondence, communications or meetings with Antitrust
Authorities unrelated to the transactions contemplated by this Agreement, the Plan or the other Transaction Agreements.


 


Section
6.12Alternative Transactions. The Company and the other Debtors shall not seek,
solicit, or support any Alternative Transaction except with the prior written consent of the Commitment Parties; provided,
however, that (i) if any of the Debtors, directly or indirectly, through any of its representatives or advisors, receives
a bona fide proposal for an Alternative Transaction from any third party (who has not withdrawn such proposal) from the date of
execution of this Agreement until the occurrence of a Termination Date, and such Debtor has determined in good faith that such
Alternative Transaction is, or after reasonable commercial negotiations may be, higher or otherwise better than the Restructuring
Transactions,


 




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then
the Debtors shall, within two business days of making such determination, notify counsel to the Commitment Parties of the receipt
of such proposal, with such notice to include the material terms thereof, including the identity of the person or group of persons
involved. The Debtors shall not enter into any confidentiality agreement with a party interested in an Alternative Transaction
unless such party consents to identifying and providing to counsel to the Commitment Parties (under a reasonably acceptable confidentiality
agreement) the foregoing information.


 


Article
VII



CONDITIONS TO THE OBLIGATIONS OF THE PARTIES


 


Section
7.1Conditions to the Obligations of the Commitment Parties. The obligations of
each Commitment Party to consummate the transactions contemplated hereby shall be subject to (unless waived in accordance with
‎Section 7.2) the satisfaction of the following conditions prior to or at the Closing:


 


(a)       Approval
Order. The Bankruptcy Court shall have entered the Approval Order and such Order shall be a Final Order.


 


(b)       Confirmation
Order. The Bankruptcy Court shall have entered the Confirmation Order in form and substance reasonably satisfactory to the
Requisite Commitment Parties, and such Order shall be a Final Order.


 


(c)       Plan.
The Company and all of the other Debtors shall have complied, in all material respects, with the terms of the Plan that are to
be performed by the Company and the other Debtors on or prior to the Effective Date and the conditions to the occurrence of the
Effective Date (other than any conditions relating to occurrence of the Closing) set forth in the Plan shall have been satisfied
or waived in accordance with the terms of the Plan.


 


(d)       Rights
Offering; Rights Offering Procedures. The Rights Offering and Rights Offering Procedures shall have been conducted, in all
material respects, in accordance with any Approval Order and this Agreement, and the Rights Offering Expiration Time shall have
occurred.


 


(e)       Effective
Date. The Effective Date shall have occurred, or shall be deemed to have occurred concurrently with the Closing, as applicable,
in accordance with the terms and conditions in the Plan and in the Confirmation Order.


 


(f)       Reorganized
Company Corporate Documents. The Reorganized Company Corporate Documents shall duly have been approved and adopted and shall
be in full force and effect.


 


(g)       Expense
Reimbursement. The Debtors shall have paid all Expense Reimbursement accrued through the Closing Date pursuant to ‎Section
3.3.


 




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(h)       Consents.
All governmental and third-party notifications, filings, consents, waivers and approvals set forth on Schedule 3 and
required for the consummation of the transactions contemplated by this Agreement and the Plan shall have been made or received.


 


(i)       Antitrust
Approvals. All waiting periods imposed by any Governmental Entity or Antitrust Authority in connection with the transactions
contemplated by this Agreement shall have terminated or expired and all authorizations, approvals, consents or clearances under
the Antitrust Laws in connection with the transactions contemplated by this Agreement shall have been obtained.


 


(j)       No
Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted or issued by any Governmental Entity that prohibits
the implementation of the Plan or the transactions contemplated by this Agreement;


 


(k)       Representations
and Warranties.


 


(i)       The
representations and warranties of the Debtors contained in Sections ‎4.11 and ‎4.28
shall be true and correct in all respects on and as of the Closing Date with the same effect as if made on and as of the Closing
Date (except for such representations and warranties made as of a specified date, which shall be true and correct only as of the
specified date).


 


(ii)       The
representations and warranties of the Debtors contained in Sections ‎4.2, ‎4.3,
‎4.4, ‎4.5, and ‎4.6(b) shall
be true and correct in all material respects on and as of the Closing Date after giving effect to the Plan with the same effect
as if made on and as of the Closing Date after giving effect to the Plan (except for such representations and warranties made
as of a specified date, which shall be true and correct in all material respects only as of the specified date).


 


(iii)       The
representations and warranties of the Debtors contained in this Agreement other than those referred to in clauses (i) and (ii)
above shall be true and correct (disregarding all materiality or Material Adverse Effect qualifiers) on and as of the Closing
Date after giving effect to the Plan with the same effect as if made on and as of the Closing Date after giving effect to the
Plan (except for such representations and warranties made as of a specified date, which shall be true and correct only as of the
specified date), except where the failure to be so true and correct does not constitute,
individually or in the aggregate, a Material Adverse Effect.


 


(l)       Covenants.
The Debtors shall have performed and complied, in all material respects, with all of their respective covenants and agreements
contained in this Agreement that contemplate, by their terms, performance or compliance prior to the Closing Date.


 


(m)       Material
Adverse Effect. Since the date of this Agreement, there shall not have occurred, and there shall not exist, any event, development,
occurrence or change that constitutes, individually or in the aggregate, a Material Adverse Effect.


 




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(n)       Officer’s
Certificate. The Commitment Parties shall have received on and as of the Closing Date a certificate of the chief executive
officer or chief financial officer of the Company confirming that the conditions set forth in Sections ‎7.1(k),
‎(l), and ‎(m) have been satisfied.


 


(o)       Funding
Notice. The Noteholders shall have received the Funding Notice.


 


(p)       Key
Contracts. The assumption or rejection (in each case, pursuant to section 365 of the Bankruptcy Code) and/or amendment of
the Contracts described in Section 1.1 of the Company Disclosure Schedules as of the Closing Date and the liabilities
of the Reorganized Debtors with respect to such Contracts shall, in the aggregate, be reasonably satisfactory to the Requisite
Commitment Parties.


 


Section
7.2Waiver of Conditions to Obligations of Commitment Parties. All or any of the
conditions set forth in ‎Section 7.1 may only be waived in whole or in part with respect to all Commitment Parties
by a written instrument executed by the Requisite Commitment Parties in their sole discretion and if so waived, all Commitment
Parties shall be bound by such waiver.


 


Section
7.3Conditions to the Obligations of the Debtors. The obligations of the Debtors
to consummate the transactions contemplated hereby with the Commitment Parties is subject to (unless waived by the Company) the
satisfaction of each of the following conditions:


 


(a)       Approval
Order. The Bankruptcy Court shall have entered the Approval Order and such Order shall be a Final Order.


 


(b)       Confirmation
Order. The Bankruptcy Court shall have entered the Confirmation Order, and such Order shall be a Final Order.


 


(c)       Effective
Date. The Effective Date shall have occurred in accordance with the terms and conditions in the Plan and in the Confirmation
Order.


 


(d)       Rights
Offering. The Rights Offering Expiration Time shall have occurred.


 


(e)       Antitrust
Approvals. All waiting periods imposed by any Governmental Entity or Antitrust Authority in connection with the transactions
contemplated by this Agreement shall have terminated or expired and all authorizations, approvals, consents or clearances under
the Antitrust Laws in connection with the transactions contemplated by this Agreement shall have been obtained.


 


(f)       No
Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted or issued by any Governmental Entity that prohibits
the implementation of the Plan or the transactions contemplated by this Agreement.


 




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(g)       Representations
and Warranties.


 


(i)       Solely
to the extent that (a) the Unsubscribed Shares or (b) any shares of New Common Stock issued to such Commitment Party in satisfaction
of the Commitment Premium are, in either case, issued pursuant to this Agreement in reliance on Section 4(a)(2) of the Securities
Act, the representations and warranties of the Commitment Parties contained in Sections 5.6, 5.7 and 5.8 shall be true and correct
in all material respects on and as of the Closing Date with the same effect as if made on and as of the Closing Date.


 


(ii)       The
representations and warranties of the Commitment Parties contained in this Agreement (other than those referred to in clause (i)
above) that are qualified by “materiality” or “material adverse effect” or words or similar import shall
be true and correct in all respects on and as of the Closing Date with the same effect as if made on and as of the Closing Date
(except for such representations and warranties made as of a specified date, which shall be true and correct in all respects only
as of the specified date).


 


(iii)       The
representations and warranties of the Commitment Parties contained in this Agreement (other than those referred to in clause (i)
above) that are not qualified by “materiality” or “material adverse effect” or words or similar import
shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as of
the Closing Date (except for such representations and warranties made as of a specified date, which shall be true and correct
in all material respects only as of the specified date).


 


(h)       Covenants.
The Commitment Parties shall have performed and complied, in all material respects, with all of their covenants and agreements
contained in this Agreement and in any other document delivered pursuant to this Agreement.


 


(i)       Officer’s
Certificate. Upon request of the Company, the Debtors shall have received on and as of the Closing Date a certificate of an
executive officer or other authorized signatory of each of the Commitment Parties confirming that the conditions set forth in
Section 7.3‎(h) and ‎(i) have been satisfied.


 


Article
VIII



INDEMNIFICATION AND CONTRIBUTION


 


Section
8.1Indemnification Obligations. Following the entry of the Approval Order, the
Company and the other Debtors (the “Indemnifying Parties” and each, an “Indemnifying Party”)
shall, jointly and severally, indemnify and hold harmless each Commitment Party and its Affiliates, equity holders, members, partners,
general partners, managers and its and their respective Representatives and controlling persons (each, an “Indemnified
Person”) from and against any and all losses, claims, damages, liabilities and costs and expenses (other than Taxes
of the Commitment Parties except to the extent otherwise provided for in this Agreement) (collectively, “Losses”)
that any such Indemnified Person may


 




    46


     

    

incur
or to which any such Indemnified Person may become subject arising out of or in connection with this Agreement, the Plan and the
transactions contemplated hereby and thereby, including the Backstop Commitment, the Rights Offering, the payment of the Commitment
Premium or the Termination Fee or the use of the proceeds of the Rights Offering, or any claim, challenge, litigation, investigation
or proceeding relating to any of the foregoing, regardless of whether any Indemnified Person is a party thereto, whether or not
such proceedings are brought by the Company, the other Debtors, their respective equity holders, Affiliates, creditors or any
other Person, and reimburse each Indemnified Person upon demand for reasonable documented (with such documentation subject to
redaction to preserve attorney client and work product privileges) legal or other third-party expenses incurred in connection
with investigating, preparing to defend or defending, or providing evidence in or preparing to serve or serving as a witness with
respect to, any lawsuit, investigation, claim or other proceeding relating to any of the foregoing (including in connection with
the enforcement of the indemnification obligations set forth herein), irrespective of whether or not the transactions contemplated
by this Agreement or the Plan are consummated or whether or not this Agreement is terminated; provided, that the foregoing
indemnity will not, as to any Indemnified Person, apply to Losses (a) as to a Defaulting Commitment Party, its Related Parties
or any Indemnified Person related thereto, caused by a Commitment Party Default by such Commitment Party, or (b) to the extent
they are found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the bad faith, willful misconduct
or gross negligence of such Indemnified Person.


 


Section
8.2Indemnification Procedure. Promptly after receipt by an Indemnified Person
of notice of the commencement of any claim, challenge, litigation, investigation or proceeding (an “Indemnified Claim”),
such Indemnified Person will, if a claim is to be made hereunder against the Indemnifying Party in respect thereof, notify the
Indemnifying Party in writing of the commencement thereof; provided, that (a) the omission to so notify the Indemnifying
Party will not relieve the Indemnifying Party from any liability that it may have hereunder except to the extent it has been materially
prejudiced by such failure and (b) the omission to so notify the Indemnifying Party will not relieve the Indemnifying Party
from any liability that it may have to such Indemnified Person otherwise than on account of this Article VIII. In
case any such Indemnified Claims are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will be entitled to participate therein, and, at its election by providing written notice to such
Indemnified Person, the Indemnifying Party will be entitled to assume the defense thereof, with counsel reasonably acceptable
to such Indemnified Person; provided, that if the parties (including any impleaded parties) to any such Indemnified Claims
include both such Indemnified Person and the Indemnifying Party and based on advice of such Indemnified Person’s counsel
there are legal defenses available to such Indemnified Person that are different from or additional to those available to the
Indemnifying Party, such Indemnified Person shall have the right to select separate counsel to assert such legal defenses and
to otherwise participate in the defense of such Indemnified Claims. Upon receipt of notice from the Indemnifying Party to such
Indemnified Person of its election to so assume the defense of such Indemnified Claims with counsel reasonably acceptable to the
Indemnified Person, the Indemnifying Party shall not be liable to such Indemnified Person for expenses incurred by such Indemnified
Person in connection with the defense thereof or participation therein (other than reasonable costs of investigation) unless (i) such
Indemnified Person shall have employed separate counsel (in addition to any local counsel) in connection with the assertion of
legal defenses in accordance


 




    47


     

    

with
the proviso to the immediately preceding sentence (it being understood, however, that the Indemnifying Party shall not be liable
for the expenses of more than one separate counsel representing the Indemnified Persons who are parties to such Indemnified Claims
(in addition to one local counsel in each jurisdiction in which local counsel is required)), (ii) the Indemnifying Party
shall not have employed counsel reasonably acceptable to such Indemnified Person to represent such Indemnified Person within a
reasonable time after the Indemnifying Party has received notice of commencement of the Indemnified Claims from, or delivered
on behalf of, the Indemnified Person, (iii) after the Indemnifying Party assumes the defense of the Indemnified Claims, the
Indemnified Person determines in good faith that the Indemnifying Party has failed or is failing to defend such claim and provides
written notice of such determination and the basis for such determination, and such failure is not reasonably cured within ten
(10) Business Days of receipt of such notice, or (iv) the Indemnifying Party shall have authorized in writing the employment
of counsel for such Indemnified Person. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall
have sole control over any Tax controversy or Tax audit and shall be permitted to settle any liability for Taxes of the Company
and its Subsidiaries.


 


Section
8.3Settlement of Indemnified Claims. In connection with any Indemnified Claim
for which an Indemnified Person is assuming the defense in accordance with this ‎Article VIII, the Indemnifying Party
shall not be liable for any settlement of any Indemnified Claims effected by such Indemnified Person without the written consent
of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). If any settlement of any
Indemnified Claims is consummated with the written consent of the Indemnifying Party or if there is a final judgment for the plaintiff
in any such Indemnified Claims, the Indemnifying Party agrees to indemnify and hold harmless each Indemnified Person from and
against any and all Losses by reason of such settlement or judgment to the extent such Losses are otherwise subject to indemnification
by the Indemnifying Party hereunder in accordance with, and subject to the limitations of, this ‎Article VIII. The
Indemnifying Party shall not, without the prior written consent of an Indemnified Person (which consent shall be granted or withheld,
conditioned or delayed in the Indemnified Person’s sole discretion), effect any settlement of any pending or threatened
Indemnified Claims in respect of which indemnity or contribution has been sought hereunder by such Indemnified Person unless (i) such
settlement includes an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified
Person from all liability on the claims that are the subject matter of such Indemnified Claims and (ii) such settlement does
not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified
Person.


 


Section
8.4Contribution. If for any reason the foregoing indemnification is unavailable
to any Indemnified Person or insufficient to hold it harmless from Losses that are subject to indemnification pursuant to ‎Section
8.1, then the Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Person as a result of
such Loss in such proportion as is appropriate to reflect not only the relative benefits received by the Indemnifying Party, on
the one hand, and such Indemnified Person, on the other hand, but also the relative fault of the Indemnifying Party, on the one
hand, and such Indemnified Person, on the other hand, as well as any relevant equitable considerations. It is hereby agreed that
the relative benefits to the Indemnifying Party, on the one hand, and all Indemnified Persons, on the other hand, shall be deemed
to be in the same proportion as (a) the total value received or


 




    48


     

    

proposed
to be received by the Company pursuant to the issuance and sale of the Unsubscribed Shares in the Rights Offering contemplated
by this Agreement and the Plan bears to (b) the Commitment Premium paid or proposed to be paid to the Commitment Parties.
The Indemnifying Parties also agree that no Indemnified Person shall have any liability based on their comparative or contributory
negligence or otherwise to the Indemnifying Parties, any Person asserting claims on behalf of or in right of any of the Indemnifying
Parties, or any other Person in connection with an Indemnified Claim.


 


Section
8.5Treatment of Indemnification Payments. All amounts paid by an Indemnifying
Party to an Indemnified Person under this ‎Article VIII shall, to the extent permitted by applicable Law, be treated
as adjustments to the Per Share Purchase Price for all Tax purposes. The provisions of this ‎Article VIII are an integral
part of the transactions contemplated by this Agreement and without these provisions the Commitment Parties would not have entered
into this Agreement. The Approval Order shall provide that the obligations of the Company under this ‎Article VIII
shall constitute allowed administrative expenses of the Debtors’ estate under sections 503(b) and 507 of the Bankruptcy
Code and are payable without further Order of the Bankruptcy Court, and that the Company may comply with the requirements of this
‎Article VIII without further Order of the Bankruptcy Court.


 


Section
8.6No Survival. All representations, warranties, covenants and agreements made
in this Agreement shall not survive the Closing Date except for covenants and agreements that by their terms are to be satisfied
after the Closing Date, which covenants and agreements shall survive until satisfied in accordance with their terms.


 


Article
IX



TERMINATION


 


Section
9.1Consensual Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date by mutual written consent of the Company and the Requisite
Commitment Parties.


 


Section
9.2Automatic Termination. Notwithstanding anything to the contrary in this Agreement,
following the commencement of the Chapter 11 Cases and unless and until there is an unstayed Order of the Bankruptcy Court providing
that the giving of notice under and/or termination of this Agreement in accordance with its terms is not prohibited by the automatic
stay imposed by section 362 of the Bankruptcy Code, and except as otherwise provided in this Section 9.2, at which point
this Agreement may be terminated by the Requisite Commitment Parties upon written notice to the Company upon the occurrence of
any of the following events, this Agreement shall terminate automatically without any further action or notice by any Party at
5:00 p.m., New York City time on the fifth Business Day following the occurrence of any of the following events; provided
that the Requisite Commitment Parties may waive such termination or extend any applicable dates in accordance with ‎Section
10.7:


 


(a)       the
Closing Date has not occurred by 11:59 p.m., New York City time on the date that is 119 days after the Petition Date (as
it may be extended pursuant to this ‎Section 9.2(a) or ‎Section 2.3(a), the
“Outside Date”), unless prior thereto the Effective Date occurs and


 




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the
Rights Offering has been consummated; provided, that the Outside Date may be extended with the prior written consent of
the Requisite Commitment Parties;


 


(b)       the
obligations of the Consenting Noteholders under the Restructuring Support Agreement are terminated in accordance with the terms
of the Restructuring Support Agreement;


 


(c)       the
Company, any of the other Debtors or any other Commitment Party files any motion, application or adversary proceeding (or any
of the Company, any of the other Debtors or a Consenting Noteholder supports any such motion, application, or adversary proceeding
filed or commenced by any third party) (A) challenging the validity, enforceability, perfection, or priority of, or seeking avoidance
or subordination of the Note Claims, or (B) asserting any other cause of action against and/or with respect or relating to
such claims;


 


(d)       (i)
the Company or the other Debtors shall have breached any representation, warranty, covenant or other agreement made by the Company
or the other Debtors in this Agreement or any such representation or warranty shall have become inaccurate and such breach or
inaccuracy would, individually or in the aggregate, cause a condition set forth in Sections ‎7.1(k), ‎(l), or
‎Section 7.1(m) not to be satisfied, (ii) the Commitment Parties shall have delivered written notice
of such breach or inaccuracy to the Company, (iii) such breach or inaccuracy is not cured by the Company or the other Debtors
by the tenth (10th) Business Day after receipt of such notice, and (iv) as a result of such failure to cure, any condition
set forth in Sections ‎7.1(k), ‎(l), or ‎Section 7.1(m)
is not capable of being satisfied; provided that this Agreement shall not terminate automatically pursuant to this
Section 9.2(d) if the Commitment Parties are then in willful or intentional breach of this Agreement.


 


(e)       any
Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Entity that prohibits the
implementation of the Plan or the Rights Offering or the transactions contemplated by this Agreement or the other Transaction
Agreements, and, by the tenth (10th) Business Day after such Law or final and non-appealable Order shall have been enacted,
adopted or issued, no relief has been obtained allowing consummation of the Rights Offering or the transactions contemplated by
this Agreement and the other Transaction Agreements in a manner that (i) does not prevent or diminish in a material way compliance
with the terms of the Plan and this Agreement, or (ii) is reasonably acceptable to the Requisite Commitment Parties;


 


(f)       (i)
the Bankruptcy Court approves or authorizes an Alternative Transaction; or (ii) the Company or any of its Subsidiaries enters
into any Contract providing for the consummation of any Alternative Transaction or files any motion or application seeking authority
to propose, join in or participate in the formation of, any actual or proposed Alternative Transaction;


 


(g)       the
Company or any other Debtor (i) amends or modifies, or files a pleading seeking authority to amend or modify, the Definitive Documentation
in a manner that is materially inconsistent with this Agreement; (ii) suspends or revokes the Transaction Agreements; or (iii)
publicly announces its intention to take any such action listed in sub-clauses (i) and (ii) of this subsection; or


 




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(h)       either
of the Approval Order or the Confirmation Order is terminated, reversed, stayed, dismissed, vacated, or reconsidered, or any such
Order is modified or amended after entry without the prior written consent of the Requisite Commitment Parties;


 


Section
9.3Termination by the Company.


 


This
Agreement may be terminated by the Company upon written notice to each Commitment Party upon the occurrence of any of the following
events, subject to the rights of the Company to fully and conditionally waive, in writing, on a prospective or retroactive basis
the occurrence of such event:


 


(a)       any
Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Entity that prohibits the
implementation of the Plan or the Rights Offering or the transactions contemplated by this Agreement or the other Transaction
Agreements, and, by the tenth (10th) Business Day after such Law or final and non-appealable Order shall have been enacted,
adopted or issued, no relief has been obtained allowing consummation of the Rights Offering or the transactions contemplated by
this Agreement and the other Transaction Agreements in a manner that (i) does not prevent or diminish in a material way compliance
with the terms of the Plan and this Agreement, or (ii) is reasonably acceptable to the Requisite Commitment Parties;


 


(b)       subject
to the right of the Commitment Parties to arrange a Commitment Party Replacement in accordance with ‎Section
2.3(a) (which will be deemed to cure any breach by the replaced Commitment Party pursuant to this subsection (b)), (i) any
Commitment Party shall have breached any representation, warranty, covenant or other agreement made by such Commitment Party in
this Agreement or any such representation or warranty shall have become inaccurate and such breach or inaccuracy would, individually
or in the aggregate, cause a condition set forth in ‎Section 7.3(g) or ‎Section
7.3(h) not to be satisfied, (ii) the Company shall have delivered written notice of such breach or inaccuracy to such Commitment
Party, (iii) such breach or inaccuracy is not cured by such Commitment Party by the tenth (10th) Business Day after receipt
of such notice, and (iv) as a result of such failure to cure, any condition set forth in ‎Section 7.3(g)
or ‎Section 7.3(h) is not capable of being satisfied; provided, that the Company shall not
have the right to terminate this Agreement pursuant to this ‎Section 9.3(b) if it is then in willful
or intentional breach of this Agreement;


 


(c)       the
Company or any of its Subsidiaries determines, after receiving advice from counsel, that proceeding with the Restructuring Transactions
(including, without limitation, the Plan or solicitation of the Plan) would be inconsistent with the exercise of the fiduciary
duties of the board of directors or analogous governing body of the Company or such Subsidiary; provided, that, concurrently
with such termination, the Company pays the Termination Fee pursuant to Section 9.4(b)(ii);


 


(d)       the
Restructuring Support Agreement is terminated in accordance with its terms; or


 


(e)       the
Closing Date has not occurred by the Outside Date (as the same may be extended pursuant to Section 9.2(a) or Section
2.3(a)), unless prior thereto the Effective Date


 




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occurs
and the Rights Offering has been consummated; provided, that the Company shall not have the right to terminate this Agreement
pursuant to this Section 9.3‎(e) if it is then in willful or intentional breach of this Agreement;


 


Section
9.4Effect of Termination.


 


(a)       Upon
termination of this Agreement pursuant to this ‎Article IX, this Agreement shall forthwith become void
and there shall be no further obligations or liabilities on the part of the Parties; provided, that (i) the obligations
of the Debtors to pay the Expense Reimbursement pursuant to ‎Article III, to satisfy their indemnification
obligations pursuant to Article VIII and to pay the Termination Fee pursuant to ‎Section 9.4(b)
shall survive the termination of this Agreement and shall remain in full force and effect, in each case, until such obligations
have been satisfied, (ii) the provisions set forth in this ‎Section 9.4 and ‎Article
X shall survive the termination of this Agreement in accordance with their terms and (iii) subject to ‎Section
10.10, nothing in this ‎Section 9.4 shall relieve any Party from liability for its gross negligence
or any willful or intentional breach of this Agreement. For purposes of this Agreement, “willful or intentional breach”
means a breach of this Agreement that is a consequence of an act undertaken by the breaching party with the knowledge that the
taking of such act would, or would reasonably be expected to, cause a breach of this Agreement.


 


(b)       Upon
termination of this Agreement pursuant to this Article IX (other than pursuant to (i) Section 9.2(b) (but solely to
the extent the Restructuring Support Agreement is terminated as a result of a breach thereof by the Commitment Parties), (ii) Section 9.3(b)
or (iii) Section 9.3(d) (but solely to the extent the Restructuring Support Agreement is terminated as a result of a
breach thereof by the Commitment Parties), the Debtors shall pay the Termination Fee to the Commitment Parties or their designees
based upon their respective Backstop Commitment Percentages on the date of payment, by wire transfer of immediately available
funds to such accounts as the Requisite Commitment Parties may designate on or prior to the second (2nd) Business Day following
such termination; provided, that if the Debtors shall terminate this Agreement pursuant to Section 9.3(c), then
the Debtors shall pay the Termination Fee, in cash, concurrently with such termination. For the avoidance of doubt, if the Termination
Fee becomes payable, the Debtors shall have no obligation to pay the Commitment Premium, and the Commitment Premium shall cease
to be an allowed administrative expense of the Debtors’ estate under sections 503(b) and 507 of the Bankruptcy Code.


 


To
the extent that all amounts due in respect of the Termination Fee pursuant to this ‎Section 9.4(b) have
actually been paid by the Debtors to the Commitment Parties in connection with a termination of this Agreement, the Commitment
Parties shall not have any additional recourse against the Debtors for any obligations or liabilities relating to or arising from
this Agreement, except for liability for gross negligence or willful or intentional breach of this Agreement pursuant to ‎Section
9.4(a). Except as set forth in this ‎Section 9.4(b), the Termination Fee shall not be payable upon
the termination of this Agreement. The Termination Fee shall, pursuant to the Approval Order, constitute allowed administrative
expenses of the Debtors’ estate under sections 503(b) and 507 of the Bankruptcy Code.


 




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Article
X



GENERAL PROVISIONS


 


Section
10.1Notices. All notices and other communications in connection with this Agreement
shall be in writing and shall be deemed given if delivered personally, sent via electronic facsimile (with confirmation), mailed
by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) to the Parties
at the following addresses (or at such other address for a Party as may be specified by like notice):


 


(a)       If
to the Company or any of the other Debtors:


 


	 	Bonanza Creek Energy, Inc.	 


	 	Attn:	Skip Marter
	 	410 17th Street, Suite 1400
	 	Denver, Colorado 80202


	 	Tel:	(720) 440-6100
	 	Email:	smarter@bonanzacrk.com

                                  

	 	With a copy to:

                                              

	 	Davis Polk & Wardwell LLP


	 	Attn:	Brian M. Resnick
	 	 	Daniel M. Silberger


	 	450 Lexington Avenue
	 	New York, New York 10017


	 	Tel:	(212) 450-3288
	 	Fax:	(212) 701-6288


	 	Email:	brian.resnick@davispolk.com
	 	 	daniel.silberger@davispolk.com


 


(b)       If
to the Commitment Parties:


 


To
each Commitment Party at the addresses or e-mail addresses set forth below the Commitment Party’s signature page to this
Agreement.


 



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With
a copy to:


 


	 	Kirkland & Ellis LLP	 


	 	Attn:	Steven Serajeddini
	 	300 North LaSalle
	 	Chicago, IL 60654


	 	Tel:	(312) 862-2000
	 	Fax:	(312) 862-2200


	 	Email:	steven.serajeddini@kirkland.com
	 	 	 
	 	Kirkland & Ellis LLP


	 	Attn:	Edward Sassower
	 	 	Richard Aftanas


	 	601 Lexington Avenue
	 	New York, NY 10022	


	 	Tel:	(212) 446-4800
	 	Fax:	(212) 446-4900


	 	Emails:	edward.sassower@kirkland.com
	 	 	richard.aftanas@kirkland.com


 


Section
10.2Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned by any Party (whether by operation of Law or otherwise)
without the prior written consent of the Company and the Requisite Commitment Parties, other than an assignment by a Commitment
Party expressly permitted by ‎Section 2.3 or ‎2.6 and any purported assignment in violation of this ‎Section
10.2 shall be void ab initio. Except as provided in ‎Article VIII with respect to the Indemnified Persons,
this Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer
upon any Person any rights or remedies under this Agreement other than the Parties.


 


Section
10.3Prior Negotiations; Entire Agreement.


 


(a)       This
Agreement (including the agreements attached as Exhibits to and the documents and instruments referred to in this Agreement) constitutes
the entire agreement of the Parties and supersedes all prior agreements, arrangements or understandings, whether written or oral,
among the Parties with respect to the subject matter of this Agreement, except that the Parties hereto acknowledge that any confidentiality
agreements heretofore executed among the Parties and the Restructuring Support Agreement (including the Restructuring Term Sheet)
will each continue in full force and effect.


 


(b)       Notwithstanding
anything to the contrary in the Plan (including any amendments, supplements or modifications thereto) or the Confirmation Order
(and any amendments, supplements or modifications thereto) or an affirmative vote to accept the Plan submitted by any Commitment
Party, nothing contained in the Plan (including any amendments, supplements or modifications thereto) or Confirmation Order (including
any amendments, supplements or modifications thereto) shall alter, amend or modify the rights of the Commitment


 




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Parties
under this Agreement unless such alteration, amendment or modification has been made in accordance with ‎Section
10.7.


 


Section
10.4Governing Law; Venue. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to such state’s
choice of law provisions which would require the application of the law of any other jurisdiction. By its execution and delivery
of this Agreement, each Party irrevocably and unconditionally agrees for itself that any legal action, suit, or proceeding against
it with respect to any matter arising under or arising out of or in connection with this Agreement or for recognition or enforcement
of any judgment rendered in any such action, suit, or proceeding, may be brought in the United States District Court for the Southern
District of New York, and by executing and delivering this Agreement, each of the Parties irrevocably accepts and submits itself
to the exclusive jurisdiction of such court, generally and unconditionally, with respect to any such action, suit or proceeding.
Notwithstanding the foregoing consent to New York jurisdiction, if the Chapter 11 Cases are commenced, each Party agrees that
the Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of or in connection with this Agreement. By
executing and delivering this Agreement, and upon commencement of the Chapter 11 Cases, each of the Parties irrevocably and unconditionally
submits to the personal jurisdiction of the Bankruptcy Court solely for purposes of any action, suit, proceeding, or other contested
matter arising out of or relating to this Agreement, or for recognition or enforcement of any judgment rendered or order entered
in any such action, suit, proceeding, or other contested matter. THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER
PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY THE RECIPIENT OF SUCH MAILING, OR
IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS
TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.


 


Section
10.5Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY
IN ANY JURISDICTION IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE AMONG THE PARTIES UNDER THIS AGREEMENT, WHETHER
IN CONTRACT, TORT OR OTHERWISE.


 


Section
10.6Counterparts. This Agreement may be executed in any number of counterparts,
all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each
of the Parties and delivered to each other Party (including via facsimile or other electronic transmission), it being understood
that each Party need not sign the same counterpart.


 




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Section
10.7Waivers and Amendments; Rights Cumulative; Consent. This Agreement may be
amended, restated, modified or changed only by a written instrument signed by the Company and the Requisite Commitment Parties;
provided, that (a) any Commitment Party’s prior written consent shall be required for any amendment that would, directly
or indirectly: (i) modify such Commitment Party’s Backstop Commitment Percentage, (ii) increase the Per Share
Purchase Price to be paid in respect of the Unsubscribed Shares, (iii) increase the Rights Offering Amount, (iv) increase the
number of Rights Offering Shares, or (v) have a materially adverse and disproportionate effect on such Commitment Party;
and (b) the prior written consent of each Commitment Party that was an original signatory hereto that is still a Commitment
Party as of such date of amendment shall be required for any amendment to the definition of “Requisite Commitment Parties”.
Notwithstanding the foregoing, Schedule 1 shall be revised as necessary without requiring a written instrument signed
by the Company and the Requisite Commitment Parties to reflect changes in the composition of the Commitment Parties and Backstop
Commitment Percentages as a result of Transfers permitted in accordance with the terms and conditions of this Agreement. The terms
and conditions of this Agreement (other than the conditions set forth in Sections ‎7.1 and ‎7.3,
the waiver of which shall be governed solely by ‎Article VII) may be waived (A) by the Debtors only by a written
instrument executed by the Company and (B) by the Requisite Commitment Parties only by a written instrument executed by the
Requisite Commitment Parties. No delay on the part of any Party in exercising any right, power or privilege pursuant to this Agreement
will operate as a waiver thereof, nor will any waiver on the part of any Party of any right, power or privilege pursuant to this
Agreement, nor will any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other
or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement.


 


Section
10.8Headings. The headings in this Agreement are for reference purposes only and
will not in any way affect the meaning or interpretation of this Agreement.


 


Section
10.9Specific Performance. The Parties agree that irreparable damage would occur
if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled
to an injunction or injunctions without the necessity of posting a bond to prevent breaches of this Agreement or to enforce specifically
the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity.
Unless otherwise expressly stated in this Agreement, no right or remedy described or provided in this Agreement is intended to
be exclusive or to preclude a Party from pursuing other rights and remedies to the extent available under this Agreement, at law
or in equity.


 


Section
10.10Damages. Notwithstanding anything to the contrary in this Agreement, none
of the Parties will be liable for, and none of the Parties shall claim or seek to recover, any punitive, special, indirect or
consequential damages or damages for lost profits.


 


Section
10.11No Reliance. No Commitment Party or any of its Related Parties shall have
any duties or obligations to the other Commitment Parties in respect of this Agreement, the Plan or the transactions contemplated
hereby or thereby, except those expressly set forth herein. Without limiting the generality of the foregoing, (a) no Commitment
Party or


 




    56


     

    

any
of its Related Parties shall be subject to any fiduciary or other implied duties to the other Commitment Parties, (b) no
Commitment Party or any of its Related Parties shall have any duty to take any discretionary action or exercise any discretionary
powers on behalf of any other Commitment Party, (c) no Commitment Party or any of its Related Parties shall have any duty to the
other Commitment Parties to obtain, through the exercise of diligence or otherwise, to investigate, confirm, or disclose to the
other Commitment Parties any information relating to the Company or any of its Subsidiaries that may have been communicated to
or obtained by such Commitment Party or any of its Affiliates in any capacity, (d) no Commitment Party may rely, and confirms
that it has not relied, on any due diligence investigation that any other Commitment Party or any Person acting on behalf of such
other Commitment Party may have conducted with respect to the Company or any of its Affiliates or any of their respective securities,
and (e) each Commitment Party acknowledges that no other Commitment Party is acting as a placement agent, initial purchaser,
underwriter, broker or finder with respect to its Unsubscribed Shares or Backstop Commitment Percentage of its Backstop Commitment.


 


Section
10.12Publicity. At all times prior to the Closing Date or the earlier termination
of this Agreement in accordance with its terms, the Company and the Commitment Parties shall consult with each other prior to
issuing any press releases (and provide each other a reasonable opportunity to review and comment upon such release) or otherwise
making public announcements with respect to the transactions contemplated by this Agreement, it being understood that nothing
in this ‎Section 10.12 shall prohibit any Party from filing any motions or other pleadings or documents with the Bankruptcy
Court in connection with the Chapter 11 Cases.


 


Section
10.13Settlement Discussions. This Agreement and the transactions contemplated
herein are part of a proposed settlement of a dispute between the Parties. Nothing herein shall be deemed an admission of any
kind. Pursuant to Section 408 of the U.S. Federal Rules of Evidence and any applicable state rules of evidence, this Agreement
and all negotiations relating thereto shall not be admissible into evidence in any Legal Proceeding, except to the extent filed
with, or disclosed to, the Bankruptcy Court in connection with the Chapter 11 Cases (other than a Legal Proceeding to approve
or enforce the terms of this Agreement).


 


Section
10.14No Recourse. Notwithstanding anything that may be expressed or implied in
this Agreement, and notwithstanding the fact that certain of the Parties may be partnerships or limited liability companies, each
Party covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection
with this Agreement shall be had against any Party’s Affiliates, or any of such Party’s Affiliates’ or respective
Related Parties in each case other than the Parties to this Agreement and each of their respective successors and permitted assignees
under this Agreement, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any
applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on
or otherwise be incurred by any of the Related Parties, as such, for any obligation or liability of any Party under this Agreement
or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations
or liabilities or their creation; provided, however, nothing in this ‎Section 10.14 shall relieve or
otherwise limit the liability of any Party hereto or any of their


 




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respective
successors or permitted assigns for any breach or violation of its obligations under this Agreement or such other documents or
instruments.  For the avoidance of doubt, prior to the Effective Date, none of the Parties will have any recourse, be entitled
to commence any proceeding or make any claim under this Agreement or in connection with the transactions contemplated hereby except
against any of the Parties or their respective successors and permitted assigns, as applicable.


 


[Signature
Pages Follow]


 




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IN
WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first above written.


 


 






	 	 	 	Bonanza Creek Energy, Inc.	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	By:	/s/
Richard Carty    	 
	 	 	 	 	Name:	Richard Carty	 
	 	 	 	 	Title:	President and Chief Executive Officer	 
	 	 	 	 	 	 	 


 


 


 


 


 


 


 


 





[Signature
Page to Backstop Commitment Agreement]